1. This is an application under Article 226 of the Constitution by the petitioner who is the proprietor of Madhupur Estate in Cuttack district, against the State of Orissa and the Court of Wards of the Orissa State, as well as against the Deputy Collector in charge of the Wards Estate. The State Government by virtue of the powers conferred on it under Section 16, Orissa Court of Wards Act, 1947, issued notification No. 9876/R dated the 7th December 1951, in the Revenue Department declaring the petitioner a disqualified proprietor under Section 10 (f) (iv) of the said Act and published the same in the Orissa Gazette in accordance with the provision of Section 21 of the Act. The Court of Wards assumed superintendence of the Madhupur 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 purposes & hence void. To appreciate the above contentions, it is necessary to notice a few events which in their sequence have led up to the order of the Government now under challenge, as disclosed by the affidavits on either side, and the documents filed as annexures to the affidavits.
2. In or about September 1948, the State Government appear to have received some complaints from the tenants of the Madhupur Estate regarding its management. The then Premier, Shri H.K. Mahatab, visited the Estate and an eight (sic) programme of settlement between the landlord and the tenants, to be implemented by the deputation of a competent Magistrate as a Special Officer, was drawn up on the 2nd December 1948. It is asserted on the side of the Government that this settlement was not properly implemented but this is denied on behalf of the petitioner. However that may be, it would appear that on the 26th August 1950, the Government of Orissa in the Revenue Department directed a thorough enquiry to be made into the present state of affairs of the Madhupur Estate.
This appears from annexure 'E' filed on behalf of the Government which is as follows:
'Copy of letter No. 408/G dated the 2nd September 1950, from the Secretary to Revenue Commissioner to the District Officer, Cuttack.
Sub: Management of the Madhupur Estate Cuttack.
I am directed to enclose a copy of an extract from letter No. 9048 dated the 26th August 1950, from the Government of Orissa, Revenue Departments for necessary action and report.
(Copy of an extract from the Government letter dated the 26-8-1950.)
Some complaints have been received by Government that the Estate is not well managed. Government desire that you should have a thorough enquiry made into the present state of affairs in the Madhupur Estate through experienced and impartial revenue officer. This enquiry should be made early and the result communicated to Government with your views about the necessity for taking the Estate under the Court of Wards.
The Zamindar agreed to give effect to the terms of agreement arrived at between himself and the then Assistant Secretary to Hon'ble the Chief Minister Mr. Mahatab, regarding the management of the Estate. The Collector, Cuttack reported that although some of the terms have been implemented there were others requiring attention. I am to request that Government may be informed 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 Court of Wards at present. The proceeding may be dropped.'
What exactly happened thereafter i.e. between the 24th February 1951, when the Collector submitted his report and the 7-12-1951, when the Government issued its notification declaring the petitioner a disqualified proprietor is in dispute.
It appears, however, that on the 1-12-1951, a recommendation of the Court of Wards was made in the following terms and was sent up to the Government:
'Revenue Department File Wards No. 17 of 1950, Mismanagement of the Madhupur Estate. The recommendation of the Court of Wards was as follows: When an estate management is bad, it is the duty of Government that we should take it over. My recommendation, therefore, would be that the estate be taken over under the Court of Wards.
Sd/- V. Ramanathan,
1st December 1951.
This has been followed by the impugned notification of the State Government dated 7-12-1951, copy of which is filed on behalf of the petitioner, and is as follows:
'Government of Orissa, Revenue Department.
Dated Cuttack, the 7th December, 1951, No. 9876 R:-- Whereas it has been recommended by the Court of Wards, Orissa, that Sri Brundaban Chandra Dhir Narendra, Proprietor Madhupur Estate in the district of Cuttack should be disqualified under Sub-clause (iv) of Clause (f) of Section 10, Orissa Court of Wards Act, 1947 (Orissa Act 26 of 1947).
And whereas the State Government are satisfied that the said Sri Brundaban Chandra Dhir Narendra is incapable of managing and unfitted to manage his estate and it is expedient in the public interest that his properties should be managed by the Court of Wards;
Now, therefore, the Governor of Orissa in exercise of the powers conferred by Section 16 of the said Act is pleased to declare the said Sri Brundaban Chandra Dhir Narendra to be a disqualified proprietor and hereby orders the Court of Wards, Orissa to assume the superintendence of the properties of the Proprietor.
The Governor of Orissa under Section 21 of the said Act is further pleased to direct that the Collector of Cuttack shall discharge the duties imposed upon a Collector under the said Act in respect of the properties of the said Sri Brundaban Chandra Dhir Narendra.
By order of the Governor,
Sd/- N. Senapati.
Secretary to Government.
Cuttack, the 7th December 1951.
Memo No. 9877 R
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 farwarded 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 immoveable properties immediately.
Sd/- M. N. Guha,
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 affidavit. A reply affi-davit has also been filed on behalf of the petitioner. Quite a number of details mentioned in the petitioner's affidavit and in the counter-affidavit of Shri V. Ramanathan, do not appear to have any substantial bearing on the material points that arise for decision in this case. It is, therefore, unnecessary to notice them at any length. Broadly speaking, the affidavit on behalf of the petitioner alleges that the petitioner shouldered the burden of management of his Estate on his father's death in 1946 under the threat of litigation from one Natabar Ch. Dhir, an illegitimate descendant of the family which is now said to be pending in First Appeal in the High Court preferred by the unsuccessful claimant and that as a result, the said Natabar Ch. Dhir tried to create a faction between the tenants without any marked result.
It is suggested that this insignificant internal trouble has been exploited against the petitioner since about 1946 in the contest of elections to the Orissa State Assembly. The petitioner alleges that he sought election to the Orissa State Assembly in the year 1946 in the constituency of Madhupur and surrounding areas; but withdrew his nomination in favour of the Congress candidate on the persuasion of the Provincial High Command of the Congress. It is said that again about the middle of the year of 1950, the prospect of general elections loomed large and that he was contemplating to stand as a candidate for elections, but that the Congress High Command of the State backed up one Sri Motilal Pandit as their candidate for this constituency and that he again acceded to their request and desisted from seeking elections. It is the petitioner's case that all the same his relationship with the said Congress High Command became strained as he could not be persuaded to indulge in active canvassing for the Congress candidate, viz., the said Sri Motilal Pandit. It is suggested that the impugned declaration of the State Government was consequential on this strained relations and that it was a mala fide abuse of the power vested in the Government based on political considerations in the back-ground of the then pending elections, the Government being run by the Congress party.
In addition to the above grounds of mala fides of the Government, the affidavit filed on behalf of the petitioner also suggests that the taking 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. Mo-hanty 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 Government did not accommodate him in order that the said Shri N.C. Patnaik may be thrust upon him.
It is further definitely alleged in the affidavit that after the Collector, Shri M.N. Guha, made his report dated the 24-2-1951, stating that the proceedings may be dropped, the Minister for Revenue, sometime in April 1951, ordered that no steps need be taken until further orders. The affidavit filed on behalf of the Government by Shri V. Ramanathan controverts all these allegations. He categorically states that as a fact, the Minister for Revenue passed no such order and that the allegations made in this behalf by the petitioner are false. As regards the allegations of the petitioner suggesting mala fides of the action of the Government with reference to political considerations in the context of elections, he states as follows:
'The petitioner's attempt in paragraphs 9 and 10 of the petition to bring in certain political matters is irrelevant and the Government have no information about the same, nor has their decision been influenced by any political considerations.'
He controverts the suggestion that the subordinate officers engineered an adverse report in the interest of Shri N.C. Patnaik or that the Collecter was in the scheme. He states that the Collector did not show any inclination to appoint Shri N. C. Patnaik.
As regards the petitioner's assertion that there was no mismanagement of his Estate, and that whatever there was, was duly rectified, Shri V. Ramanathan controverts it in some detail and states as follows:
'The State Government would respectfully submit that they 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 his estate and it was expedient in the public interests that the Court of Wards should take over the Estate.'
4. It may be stated at once that the allegation as to the existence of a scheme in some of the subordinate officers in the interest of one Shri N.C. Patnaik to bring about the assumption of the Estate by the Court of Wards, so that he may be appointed as the Manager thereof under the Court, has no material at all in support of it, unless we are prepared to use as evidence, the typed copy of a certain letter dated the 23-11-1950, marked as annexure (A) to the application 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 the material filed by one side or the other relating thereto, it appears to me that the same is, if at all, of very remote relevance and may be left out of consideration. The further allegation on the side of the petitioner that in fact there was no mismanagement, and such defects as were pointed out, had been rectified and counter allegation on the side of the Government in Shri V. Ramanathan's affidavit that there was in fact mismanagement, which was the basis for the State Government, for making the declaration it is sufficient to say at the present stage that the controversy raised thereby has only a limited relevancy for the purpose of this application and that will be noticed if required in due course. The most serious allegation of fact that requires scrutiny is that the proceedings that were started against the petitioner towards September 1950, has been actuated by motives connected with the back-ground of elections & that in fact, in view of the favourable report of the then Collector, Shri M.N. Guha, the proceedings were actually dropped; but that all the same the matter was revived suddenly in December 1951, in the background of the then elections and that the State Government passed the order that it did, mala fide and without the necessary basis of facts to support it.
In considering this aspect, it may be stated at once that in view of the categorical denial of Shri V Ramanathan in his counter-affidavit, we must proceed on the footing that there is no order passed by the Revenue Minister directing the dropping of the proceedings. But it does not follow that in fact the idea, at the time, of the concerned authority may not have been to drop the proceedings, in view of the Collector's report, though no formal orders may have been passed.
6. Before considering the correctness of the various contentions raised both on the facts of the case and on the law applicable to the same, it is necessary to notice the relevant provisions of the Orissa Court of Wards Act. Before the Orissa Court of Wards Act 1947, was passed, and after the Province of Orissa came into being in the year 1936, there were three Court of Wards Acts operating in three different parts of the Province of Orissa. In the ex-Madras area i.e. in the district of Ganjam and Koraput, the Act in force was the Madras Court of Wards Act of 1902. In the ex-Central Provinces area, i.e., 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, are to be found also in the Bengal and Central Provinces Acts. The fifth category appears to have been borrowed from the Central Provinces Act. There is one additional category under Clause (f) of Section 10, which is not to be found in any of the other Acts and is totally new. It is as follows :
'(f) Proprietors declared by the Provincial Government to be incapable of managing or unfitted to manage their property owing to (i) their having entered upon a course of wasteful extravagance likely to dissipate their, property; or (ii) their failure without sufficient reason to discharge the debts and liabilities due by them; or (iii) their ordinarily not residing in the Province of Orissa; or (iv) their persistent failure to discharge the duties imposed on them by any law for the time being in force.'
7. It is necessary, at this stage, to mention that the disqualification declared against the petitioner is with reference to Clause (iv), Sub-Section (f) of Section 10. It is to be noticed that what is required under Sub-section (f) of Section 10 is one or other of the facts enumerated in Clauses (i) to (iv) 'and' the further fact to be found by the State Government that, owing to the facts so found, the proprietor is incapable of managing his property or unfitted to manage his property. That is, the unfitness or incapacity to manage 'must be due to' one or other of the facts enumerated in the four clauses of Sub-section (f). And unless both the facts co-exist by way of cause and effect, the mere existence of either of the facts is not enough to bring the case under Sub-section (f) of Section 10.
8. What has next to be noticed is the group of Sections 13 to 16 and 18. Under Section 13, the Collector, if he has reason to believe that a proprietor in his district is to be declared disqualified, should submit a report to the Court setting forth all the circumstances of the case, but before so reporting he should, as provided in Section 14, give notice to the Proprietor and give him a reasonable opportunity to be heard and to adduce evidence in cases falling under Clauses (b), (d), (e), or (f) of Section 10. The Court of Wards will then consider the report and submit its report with its recommendation to the State Government under Section 15. It is next provided in Section 16 that the State Government on receipt of the recommendation of the 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 do it at all, still if they do proceed to exercise the powers conferred on them by the Act, it is their bounden duty to keep strictly within those powers. Similarly it has been held in -- 'R. H. Galloway v. Mayor and Commonalty of London', (1866) 1 English & Ir AC 34-43 (B) that it is a well-recognised principle that when persons have received authority from the Legislature to exercise certain extraordinary powers interfering with private rights of individuals, the persons so authorised should be kept by the Courts strictly within the limits of the power conferred by statute and the Court should not allow them to exercise' the powers for any collateral purposes.
But as laid down by the House of Lords and as stated by Lord Chancellor Hals-bury in the case of -- 'Westminster Corporation v. London and North Western Rly.', (1905) A C 426 at p. 427 (C)
'Assuming the thing done to be within the discretion of the local body, no Court has power to interfere with the mode in which it has exercised it. Where the Legislature has confided the power to a particular body, with a discretion how it is to be used, it is beyond the power of any Court to contest that discretion. Of course, this assumes that the thing done is the thing which the Legislature has authorised.'
Lord Macnaghten has pointed out, however, at p. 430 of the report of the same case
'It is well settled that a public body invested with statutory powers such as those conferred upon the corporation 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 it must act reasonably. The last proposition is involved in the second, if not in the first.'
Later on at p. 433 His Lordship refers to the dictum of Turner L. J., in -- 'Hill v. South Staffordshire Rly Co.', (1864) 46 E R 363 (D) when he states that
'powers such as those which are given to the corporation by an Act of Parliament are at all times to be exercised bona fide and with judgment and discretion.'
See also -- 'Stuart v. Anderson and Morrison', (1941) 2 All E R 665 at P. 671 (E), which shows that where the authority concerned has not applied its mind to one of the essential matters, the power conferred on the authority cannot be said to have been exercised honestly and bona fide. See also my judgment reported in --' Ratanlal Gupta v. Dist. Magistrate, Ganjam', AIR 1952 Orissa 52 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 Liquors Ltd.', 1922 A C 128 (G) and 'R.V. Northumberland and Compensation Appeal Tribunal; Ex parte Shaw', (1952) 1 All E R 122 (H).
When the validity of such exercise is questioned, it is normally open to the Court to examine, firstly, whether the statutory requirements of the requisite procedure have been complied with and whether the facts requisite for the exercise of that power exist. See --'1942 Cal W N 230' (sic). Where the procedure contemplated by the statutes has been in fact observed and the requisite facts on which the power depends are found to exist, but the power given is a discretionary power to act or not to act, the Court has no jurisdiction to sit in judgment over the exercise of that discretion, except to the limited extent of satisfying itself that the discretion has been exercised bona fide, that is, with 'judgment and discretion' as has been said in the decided cases, and not arbitrarily or for extraneous purposes.
Thus, to restate categorically the exercise of the statutory power is open to challenge broadly on three grounds: (a) non-observance of mandatory statutory procedure, (b) non-exist-ence of the basic facts with reference to which the power is vested, and (c) an abuse of the discretion for collateral purpose or an arbitrary exercise thereof. Now it is clear that grounds 1 and 3 are always open to examination by Courts. But so far as the second ground is concerned, a further distinction arises. In the ordinary class of cases, the question as to whether the basic facts which confer the statutory power exist is one collateral to the exercise of the power itself and hence is one subject to examination by the ordinary Courts when the legality of the exercise of the power is challenged. 'The Queen v. Commrs. for Special Purposes of the Income Tax', (1888) 21 QBD 313 (I & J); & --'Colonial Bank of Australasia v. Willan', (1874) LR 5 PC 417 (K). But it may sometimes happen as pointed out in those cases that the decision of the collateral facts with reference to which the power is vested in the authority concerned is vested in that authority itself by the statute. In such a case, the Court will be precluded from canvas- sing the correctness of that decision except for the purpose of satisfying itself that there has been a fair and judicial determination of these facts. Occasionally, however, as happens 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 Cal 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 here concerned only with the declaration made by the Provincial Government under Section 16 of the Act. Now under Section 16, the Provincial Government, on receipt of the Court's recommendation may, in any case falling under Clauses (b), (d), (e), or (f) of Section 10 declare the proprietor to be disqualified. The question has not been raised or argued before us as to whether the effect of Sub-section (1) of Section 52 is to preclude the Court from canvassing the question as to the existence or otherwise of the basic facts referred to in Clauses (d), (e) or (f) of Section 10 as the foundation for the declaration of the Government and to vest the decision as to the existence of the same to the sole judgment of the Government.
But even assuming, without deciding, this to be so, it has to be observed that there is a marked distinction between the terms of Section 16 and the terms of Section 18 of the Act. Section 18 is as follows:
'The Provincial Government shall not declare any proprietor to be disqualified under Clauses (d), (e) and (f) of Section 10, unless '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.'
It would appear, from a consideration of Sections 16 and 18, that the exercise of the power of tha State Government to declare a person disqualified depends on (1) the objective existence of the facts referred to in Clauses (b), (d), (e) or (f) of Section 10, and (2) the subjective satisfaction of the State Government about the expediency of the property being taken under the management of the Court of Wards in the public interest, when the case falls under Clauses (d), (e) and (f) of Section 10. It may be that so far as the subjective satisfaction is concerned, the Courts appear to be precluded from questioning that satisfaction where a statement to that effect is inserted in the declaration made as provided in Section 18 of the Act. But, so far as the objective existence of the facts required in Clauses (b), (d), (e) or (f) is concerned, the question depends on a correct construction of Section 52(1). It is possible to argue on the basis of it that the Courts cannot go into the correctness oi the decision of the Government as regards the existence of those 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 Govern-ment 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', AIR 1952 Cal 656 (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 certain matters shall be finally determined by a statutory authority or by a proviso that no other Court shall intermeddle with regard to certain matters as to which jurisdiction is conferred on that authority. See Halsbury's Laws of England, Second Edition, Vol. II, page 861, paragraph 1455. See also --- Rex v. Moreley', (1760) 97 ER 696 (O); -- 'Ex parte Bradlaugh', (1878) 3 Q B 509 (P) and '(1874) L R 5 PC 417' (K). It is quite clear, therefore, that in spite of Section 52, Sub-section (1), this Court has the duty to decide whether or not the declaration of the proprietor is based on the materials before it which are relevant for the conclusion reached with reference to the statutory requirements of Section 10 (f) (iv) of the Act and this Court has - also the duty to see that even if such materials are relevant, whether they can be said to be sufficient in law for the purpose of enabling the Government to arrive at the conclusion.
If I am correct in the view that that obligation is cast on the Court in a case of this kind, it is obvious that the Court can arrive at its decision only with reference to the actual material that is placed before it by either side and cannot assume the existence of material not placed before it. It is necessary to point out here that with reference to a matter which the Court is called upon to decide, it is the duty of the party concerned to place before the Court all relevant material. The Court in all such cases may raise the presumption against the party concerned for non-production of any relevant material asserted to exist. Vide illustration (g) to Section 114 of the Evidence Act. In the application of this presumption, the Government stands on no higher looting than a private party except in cases where the function of the Court in this behalf is taken away by specific statutory provisions, which while vesting the Government with statutory powers on the basis of certain objective facts relegates the question of existence of such objective facts not to a quasi-judicial deter-mination thereof but to the satisfaction of the authority concerned.
As I have pointed out above, that not being the statutory provision in this case so far as the requirements of Section 10 (f) (iv) are concerned, the Court is bound to come to its own independent conclusion on the material placed before it for the purpose of exercising 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 discharge the duties imposed on him by any law for the time being in force and that there should also be found as a fact, the incapacity or unfitness of the proprietor to manage his properties owing to such persistent failure. The existence of these two facts is by the terms of the Act and their being related to each other as cause and effect is a condition precedent for the exercise by the State Government of the discretionary power to declare a proprietor to be disqualified and to direct the taking over by the Court of Wards of' the superintendence of his properties. While, as already stated, the Court may not sit in judgment over the determination by the State Government of the existence of those facts, the Court has the duty to scrutinise as explained above whether there was relevant material for arriving at the conclusion, whether material was in law sufficient for the same and whether the essential requisite viz., that the two basic facts are to have causal relation to each other has been clearly kept in view. It is necessary, therefore, to consider the material' in this case with reference to the requirements of Clause (iv) of Sub-section (f) of Section 10 of the Act for the very limited purpose above stated. It is from this aspect that I shall now proceed to consider the facts of this case in some detail.
13. The only material before us which enables us to see what exactly are the grounds on which the State Government declared the petitioner disqualified is paragraph 11 of the affidavit of Shri V. Ramanathan which states as follows:
'The Government after consideration of the report (Collector's report dated 24-2-1951) and of the materials on which it was based and the recommendation of the Court of Wards, came to the conclusion that following charges were proved against the proprietor:
(a) He was not granting receipts to Dhuli-bhag tenants in contravention of the provisions of Section 65 of the Orissa Tenancy Act.
(b) He was collecting a petition fee of Re. 0-4-0 on each petition in contravention of Section 84, Orissa Tenancy Act.
(c) He contravened the provisions of Section 3, Orissa Communal Forest and Private Land (Prohibition of Alienation) Act, 1948, by leasing out Gochar lands in mouza Kusthira, Baunas Kauta and Madhupurpat and Leasing out 0-43 acres of private lands in Baunsa-kanta to one Madhu Baral and also leasing out 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 officers was with the notice to the proprietor.
It would appear from the Collector's report itself that this prior joint report was only the basis on which the charges against the proprietor were framed and incorporated in the notice issued under Section 14(1). What exactly was done after this notice was issued appears from the Collector's report which states as follows:
'I framed charges against the proprietor which I incorporated in a notice issued under Section 14 (1) of the Orissa Court of Wards Act, 1947, to the said Proprietor. A copy of the notice was forwarded to the Revenue Commissioner, Orissa Cuttack, in this office memo No. 6520-W dated 7-12-1950. In reply, the proprietor filed a written statement before me on 28-12-1950. After this, it became necessary that the charges should be enquired into before making a final report. Notice was served upon all the witnesses concerned in the charges to appear before me at the Jenapur camp on the 7th and the 8th of February 1951, and the proprietor of the Madhupur Estate was also noticed to appear there and to adduce any evidence that he chose to in order to rebut the allegations. Accordingly, enquiry was held at Jenapur by me on the 7th and 8th of February 1951. I was also assisted at the enquiry by Shri A.C. Bando-padhya, I.A.S. and by Shri K. M. Patnaik. Sub-divisional Officer, Jajpur, As further enquiry into records was found necessary, I caused the records of the Madhupur Estate to be inspected in detail by the Sub-divisional Officer, Jajpur, on the 20th and the 21st instant and he also made some further enquiries. A copy of his report is enclosed.'
Thus, it would appear that the enquiry consisted in obtaining a written statement from the proprietor in explanation of the charges, examining certain witnesses on either side with the assistance of two other officers and a detailed inspection of the records of the Estate by the Sub-divisional Officer who submitted his report thereon. It does not appear, whether or not, when the witnesses were examined on either side, any statements were recorded from them. Neither, the written statement of the proprietor nor the report of the Sub-divisional Officer, Jajpur, with reference to the detailed inspection of Madhupur Estate, nor the statements, if any, taken from the witnesses from either side at the enquiry held on 7th and the 8th February, 1951 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 Government but in any ease this being an ex parte report made before the statutory enquiry under Section 14, is not legitimate material on which the declaration of the Government could be based and indeed Shri Rama-nathan's affidavit does not claim that it was used as part of the material. Hence it may be left out of consideration. The recommendation of the Court of Wards, which has been referred to in this connection has been extracted earlier and does not, on the face of it disclose any material on which it may have been based, apart, presumably, from the Collector's report. This Court can, therefore, only depend on the materials as disclosed in the statement of facts to be gleaned from the Collector's report.
15. The charges referred to by Shri V. Ramanathan in para. 11 of his affidavit, may now be taken up one by one to be judged in the light of the above material. Charge (a) under para. 11 of the affidavit is the same as charge No. 5 in the notice issued to the petitioner. That charge specifies the following:
'Sukuti Sahu of Kustira and others have been cultivating the land on bhag in Badachaka of Madhupur Pat. Though they pay bhag, the Madhupur Estate does not grant receipts to them.'
With reference to this, the Collector's report states as follows:
'The plea of the Estate is that this land was settled with one Shri K.L. Eanerjee in the year 1947 and so the tenants are not entitled to get receipts from the Estate. This plea is also borne out by the Estate records and so the instance cited makes out no case. It was found from the inspection of the office that the receipts were regularly given, when rent was paid by tenants except only in the case of Bhag tenants rendering Bhag in kind. Even in such cases receipts are being regularly granted since last year. This used to be the practice with most landlords. This charge, therefore, could not be substantiated.'
Under Section 65, Orissa Tenancy Act,
'Every tenant who makes a payment on account of rent to his landlord shall be entitled to obtain forthwith from the landlord a written receipt for the amount paid by him signed by the landlord.'
This section gives a right to the tenant to ob-tain receipts from the landlord for the payments made by him, but does not appear by its terms to cast on him the obligation to give such receipt even without any demand for it 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 Collecor 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 the Collector as being false or inaccurate.
16. The next item charge (b) is that the proprietor was collecting a petition-fee of annas four on each petition in contravention of Section 24 (84?) Orissa Tenancy Act. This is covered by charge No. 6 in the notice issued by the Collector to the petitioner which states as follows:
'Whenever a tenant makes an application to the Madhupur Estate, he is made to pay Re. 0-4-0 with the application petition fee, which as not warranted by any law in force. The petition-register for 1950-51 up to 2-12-1951, shows 1016 of such cases of illegal exactions.'
With reference to this, the Collector in his report says as follows:
'The plea of the proprietor is that the practice as aforesaid has continued from the time of his father and that several petitions have also been received without any fee. This plea of the proprietor has been established in the S.D.O's enquiry where he found that this fee is not habitually realised and that even in several cases, no petition fee was taken. This is going to be stopped by my executive order.'
17. The next item, charge (c), is that the proprietor contravened the provisions of Orissa Communal Forest and Private Land (Prohibition of Alienation) Act, 1948, by leasing out Gochar lands, etc. This is the same as charge No. 3 mentioned in the notice issued by the Collector. That charge mentions only three specific instances. The Collector deals with these three instances in detail and broadly speaking his report in respect of this matter shows the following. The allegations regarding this violation of statutory provisions appear to have been made in respect of four villages by quite a number of tenants in each village, but actually at the enquiry made by the Collector only three appeared of whom two did not press their complaint. The Collector also states that the plea of the proprietor in answer to this charge was supported by Chakala Ka-nungo, who was examined before him and also by the report of the Sub-divisional Officer, Jaj-pur, who made a personal enquiry on the spot and he accordingly held that this charge has not been made out. If with reference to the material gathered at that enquiry, a different conclusion was reasonably possible for the Government to take, all that need be said is that such material has not been made available to us.
18. The next item, 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 item, charge (e), is that the proprietor's office was in a chaotic condition. This is also a part of charge No. 7 in the notice issued to the proprietor by the Collector. With reference to this, the Collector in his report remarks as follows:
'It was found from an inspection of the proprietor's office that papers had been maintained according to procedure that was being followed at the time when the Estate was last under the Court of Wards, and that there was nothing wrong with them till the year 1946, when some looseness crept in. This was evidently due to the prolonged illness of the former proprietor. Even then the usual office is maintained and all the registers are systematically maintained, though the looseness that first appeared in 1946, has continued in some form or other due to the inefficiency of the lowly paid staff.'
20. Thus, out of the five charges above mentioned, which, according to the affidavit of Shri V. Ramanathan, were the grounds held by the Government to have been proved against the proprietor and which he states were the basis for the declaration of disqualification of the petitioner, the material made available to us, does not show that there was any possible basis on which a 'persistent' contravention either of Section 65, Orissa Tenancy Act, or Section 3, Orissa Communal Forest and Private Land (Prohibition of Alienation) Act, 1948, can possibly be said to have been made out. It 'does appear', however, that the petitioner was collecting a petition-fee of annas four and that a large number of mutation petitions were pending and that the proprietor's office was also not being satisfactorily run. So far as the last two are concerned, they are not facts which can be said to constitute persistent failure 'to discharge the, duties imposed on the proprietor by any law for the time being in force.' There is no obligation, so far as I am aware, imposed on the landlord by law to maintain mutation registers and to dispose of mutation petitions punctually or to run his office to the satisfaction of the executive authorities. The existence of such legal obligation, if any, has not been brought to our notice. These two facts at best may show the proprietor's bad management, but that bad management cannot be said to be effect of 'persistent failure to discharge a legal obligation.'
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 the father of the petitioner and has continued since then.'
It does not appear from the Collector's report that this explanation was found to be false. On the other hand it appears to have been more or less accepted by him. If that be so, it is difficult to see how the collection of petition- fees can be charged to be by way of an illegal exaction in breach of Sections 84 and 85, Orissa Tenancy Act.
21. From the above detailed consideration, it is clear that if one has to go merely by the material disclosed by the Collector's report and keeping aside for the moment the opinion that he has expressed on such material, there seems to be nothing with reference to which a reasonable conclusion of 'persistent failure to discharge the duties imposed on the proprietor by law' could have been arrived at by the Government. Only three out of the five charges in para. 11 of Shri V. Ramanathan's affidavit relate to alleged breach of specific statutory functions. The other two are allegations of bad management, not having anything to do with statutory or other legal duties. The three alleged breaches of statutory duty do not appaar to be capable of being substantiated or in any view of being held to be persistent with reference to the material available, and if there were any other material collected at the enquiry by the Collector and made available to the Government, that has not been placed before us. Shri V. Ramanathan in his affidavit merely states that apart from the Collector's report there were other materials before the Government as well as the Court's recommendation.
The recommendation of the Court of Wards has already been set out in the earlier part of this judgment. Standing by itself, it discloses only the fact that the Board record-mended the Estate to be taken over under the Court of Wards. But it does not disclose the material on which that recommendation is based. All that it says is that: 'When an Estate management is bad, it is the duty of the Government to take it over.' This standing by itself is extremely laconic and perfunctory. It is possible that with reference to some other office note placed before Shri V. Ramanathan setting out all the facts of the case, this laconic sentence may be intelligible and may amount to an expression of the view by him that the Estate management is bad as a result of certain 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 facts should be found, that is, the breach of the statutory obligation and mismanagement; but that they must be found to co-exist as cause and effect. It is doubtful, whether even the Government rea-lised that this was essential in order to clothe them with the power to declare the petitioner as a disqualified proprietor, for it is to be noticed that even in the notification of disqualification, there is no such statement made.
22. Shri Ramanathan in his affidavit, para. 11, states that although the Collector's report dated 24-2-1951, did not recommend the taking over of the Estate under the Court of Wards, it will show that the tenants who had lodged complaints before the Government were gained over by the proprietor, as he anticipated that the enquiry might result in the Court of Wards assuming the Estate. One cannot help saying that this is a curious misunderstanding of the Collector's report.
The Collector in the concluding paragraph of his affidavit states as follows:
'My considered opinion, therefore, is that the allegations which poured in numbers were really baseless. The settlement effected by the Special Officer in 1949 vastly set matters right, but thereafter also allegations poured in, because those who made these allegations, believed that thereby they would be able to fish out some more lands from the proprietor who they thought had been brought to bay. On their uncorroborated statements charges were framed, but after the filing of the written statement and fixing a date for taking regular evidence both for the petitioner and for the defence, things took a turn. During my enquiry this month, not a single soul turned up to substantiate his allegation. I made extensive tours also in several villages in the Estate, but no complaints were forthcoming. Had the story of alleged contravention and dispossession been based on facts, the petitioners would certainly have come forward. The vast majority of them did not turn up. Those that did, had no complaint to make. Of course, this leads to a presumption that the proprietor made up matters with any amicable settlement, but with the issues before me as mentioned in the foregoing paragraphs they have not been proved. If the story of amicable settlement is true, that goes to show that the relationship between the landlord and the tenants is now quite satisfactory and cordial and that no trouble 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 us -- leaves one with the impression that though all the materials which were collected by the Collector at the enquiry may not by themselves have supported any of the charges, as the Collector finds, but that Shri Ramanathan and the Government have perfunctorily assumed without any material before them, that the various charges specified in para. 11 of Shri Ramanathan's affidavit, have been proved merely because in their opinion the tenants who should have given evidence were gained over. In the circumstances, therefore, disclosed by the Collector's report and Shri Ramanathan's affidavit, it is impossible for the Court to accept the assertion of Shri Ramanathan that there were relevant materials on which the Government could come to a reasonable conclusion that the alleged charges were made out.
Of course, as already stated at the outset, it is not the function of this Court to sit in judgment over the conclusions arrived at by the Government or by Shri Ramanathan in the course of the discharge of the statutory duties committed to them by the Legislature. But this Court has, as already stated, the duty of satisfying itself, when the validity of bona fides of their action is challenged, that the material available to them was reasonably related to the conclusion purported to have been arrived at. In the situation 'prima facie' disclosed by the Collector's report, the mere 'assertion of Shri Ramanathan is not enough to show the existence of any relevant material for the conclusion. It is to be noticed that as against the assertion of Shri Ramanathan of the existence of the material on which the conclusion was based, the petitioner has filed a counter-affidavit in para. 9 of which he states:
'It is asserted that there are no materials to prove the charges (a), (b), (c) or (d) referred to in para 11 of the counter.'
This assertion gains further support from the fact that those materials have not been produced before this Court nor even their nature clearly indicated.
In view of the conclusions in the Collector's report which the Government itself has filed before this Court as part of its documents and in view of the categorical counter-assertion of the petitioner who was a party to the enquiry that there were no materials on which the alleged conclusions of the Government on the charges referred to in para. 11 of 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 before it. It has not been suggested that any privilege would be claimed under the Evidence Act for tha disclosure of the alleged relevant material. In the circumstances, the Court has to come to its own conclusion that the material, if produced, is not likely to be found to be relevant or sufficient for the conclusions said to have been reached by the Government. In stating so, I may not be understood as saying that the Government, on the material before it, if any, came to a wrong conclusion, which, as already stated, is not the function of this Court; but the conclusion that appears to be reasonable is that the material if produced is not 'likely to be found to be relevant or sufficient for the conclusion and not that the conclusion based upon it is a wrong conclusion. Thus, there is every room for thinking that the alleged conclusion of the Government is arbitrary and not based on relevant material.
24. The second important question of fact that has been raised before us in these proceedings is that as a result of the report of the Collector, the proceedings which were initiated against the proprietor by the formal notice to be served on him, were, in fact, dropped. I have already stated that the allegation made by the petitioner that the Revenue Minister had passed an order to that effect, has not been substantiated; but there are other materials on the record, with reference to which the petitioner seeks to make out that it is reasonable to infer that the proceedings were, in fact, virtually dropped. It is admitted on behalf of the Government that though the Collector's report was dated 24-2-1951, and was in fact forwarded both to the Revenue Commissioner and the Government simultaneously to save delay as appears from the very letter of the Collector forwarding his report, the recommendation of the Board comes in only on 1-12-1951 and the notification declaring the petitioner as disqualified is dated 7-12-1951. On the side of the petitioner it is legitimately argued that if it took as much as nine months for the Court of Wards to make its recommendation, it is extraordinary that the Government made up its mind within less than a week and it is suggested that this indicates nothing else than the revival of a dropped proceeding and an arbitrary and hasty decision of the Government preceded by an equally arbitrary and hasty recommendation by the Court 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 behalf must be taken as not proved, but the obvious delay between the report of the Collector, Shri M. N. Guha, sent towards the end of February 1951, and the date of recommendation of Shri Ramanathan on 1-12-1951, remains to be scrutinised.
In reply to that Shri Ramanathan in para. 21 of his affidavit states as follows:
'The delay between January 1951 and December 1951 is due to the fact that the matter was under careful consideration of the Board of Revenue and the Government.'
Now here again, in the circumstances disclosed in this case by the report of the Collector dated 24-2-1951, it is not reasonably possible to take this assertion at its face value without further material to substantiate it, which the Government has not chosen to place before us. The Government initiated this enquiry by a letter sent as early as in September 1950, and they, in terms, asked that the enquiry should be made 'early' and the result communicated to the Government with the views of the Revenue Commissioner about the necessity, for taking over the Estate under the Court of Wards. Obviously, the necessity for early action was recognised by the Government even when they initiated this enquiry. If, therefore, it took the Court of Wards as much as nine months after the Collector's report to send up its recommendation to the Government, it was clearly incumbent upon the authorities concerned, to place before this Court satisfactory material to account for the delay instead of merely expecting the Court to accept the bare assertion of an official, however high placed, in the face of this extraordinary delay.
Apart from not disclosing the material to show what exactly happened during all this time to account for the delay not being placed on the record, Shri Ramanathan in his affidavit has not even informed the Court what exactly were the stages or steps through which these proceedings passed between February 1951 and December 1951, and from which it could be reasonable to gather that the matter was pending serious consideration all the time. In view, therefore, of the lack of either material or detailed information accounting for the assertion made on behalf of the petitioner that having regard to the report of the Collector the matter was virtually dropped though there may have been no formal order to the effect (sic). That impression is to some extent supported 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, ShriM.N. Guha, to the petitioner which is asfollows:
' Cuttack District Office,
Dated Cuttack, the 31st March, 1951.
D. O. No. 1784/(Wards)
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 Superintendentship of your Estate. He is an Officer of tested merit and integrity. It is unfortunate that you have lost his assistance. 'Will you please let me know the circumstances leading to his resignation?' He has written to me a letter dated 26-2-51 (copy enclosed) with which he has forwarded a copy of his resignation letter addressed to you. Will you kindly let me have a report thereon? Now in your letter dated 6-3-1951, you have requested me to lend the services of Sri Pitamber Bal, B.A., present Rehabilitation Officer under me for appointment as Manager of your estate. In reply I am to say that he cannot be spared from very urgent Rehabilitation work entrusted to him by Government. You must appoint some other suitable person at once and do not proceed slowly in this fashion. I want to know what arrangements you have since made for running the administration of your Estate. I shall inspect it thoroughly again in a month or so and want to be satisfied that you have been in earnest about efficient management. Recently there were so many allegations against the management, past and present, and so there was a detailed enquiry. I may incidentally mention to you that if things do not improve within a reasonable time a serious view of your estate administration will be called for. You should work night and day for the welfare of your estate and the tenantry, whose welfare is entrusted to your charge.
Please acknowledge receipt of this letter and reply within 10 days.
With kindest regards.
Sd/- M. N. Guha,
Shri B. B. C. Dhir Narendra,
Proprietor Madhupur Estate,
P. O. Garh Madhupur, Dist. Cuttack.
Memo No. Cuttack District Office/(Wards)). Bated Cuttack, the 31st March 1951.
Copy with copies of letter of Sri Nimei Charan Patnaik by address and its enclosure forwarded to Secretary to Revenue Commissioner/Secretary to Govt. of Orissa, Revenue Department for favour of information in continuation of this office No. 905-W dated 24-2-51/No. 906-W dated 24-2-51. Copies of Reporter's letter dated 26-3-51 with its enclosure are also enclosed.
Sd/- M. N. Guha,
and another letter dated 8-6-1951, written to the petitioner by the succeeding Collector, Shri P. C. Mohanty, which is as follows:
'D. O. No. 3346/Wards.
Dated the 8th June, 1951.
Cuttack District Office.
Please 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 resignad 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 how you have been progressing. Please let me know if you are ready for an inspection.
An early reply to all the points raised in this letter would be appreciated.
Sd/.- P. C. Mohanty
Sri B. B. C. Dhir Narendra,
Proprietor, Madhupur Estate.'
The fact of these two letters having been sent is admitted in the affidavit of Shri Ramanathan. The petitioner alleges in his affidavit that he sent a reply dated 30-6-1951, to the Collector, which is as follows:
The 30th June, 1951.
I am in receipt of your kind D. O. No. 3346 dated 8/11 instant. I have already stopped the payment of petition fee long ago.
As regards the mutation cases, truly speaking they are not such but they are the notices received from the S. D. O.'s office and are not much in number. We are receiving about a thousand of such notices annually. There are several mistakes in respect of khata and khasara numbers and fair and equitable distribution of rent. It is very necessary in most of the cases to consult the persons concerned for correction in the office for avoiding future complications. This is done in the best interest of the tenants. I have moved the Revenue Commissioner to give the services of Sri Pitamber Bal to me but I have received no reply yet. I am moving higher authorities in this respect.
As rpgards the allegations made by Sri N. C. Patnaik, I am to say that they are entirely baseless and malicious. There is a conspiracy going on against me as I understand by some persons for their selfish end to put me into trouble in various ways. He has done some work against the interest of the tenants and myself.
All other works are going on speedily and smoothly.
There is no objection on my part of your visiting my estate in future when it suits your convenience.
Sd/- B. B. C. Dhir Narendra.
Sri P. C. Mohanty.
District Magistrate & Collector,
Shri V. Ramanathan in his affidavit denies that any such letter was received. However that may be, letters dated 31-3-1951 and 8-6-51, of the Collector clearly show that an impres-sion was left on the mind of the petitioner that no further action was contemplated with reference to the enquiry that was started against him and all that was contemplated by the authorities was that he should rectify the two irregularities pointed 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 is every basis for the allegation made on behalf of the petitioner that the matter was virtually treated as dropped. It appears, therefore, probable that at the time the Collector's report was received, which, it must be noted, was simultaneously received both by the Board and the Government, there was no intention of the authorities concerned to take any further action having regard to the report of the Collector, but that no formal orders were passed dropping the proceedings. It may also be noticed that a copy of the letter of the Collector, Shri M.N. Guha, dated 31-3-1952, was in fart sent both to the Revenue Commissioner and the Government as that very letter shows. The contents of that letter very clearly indicate the impression that the matter was to be dropped. In the face of this, it was the obvious duty, both of the Revenue Commissioner and of the Government to contradict it immediately and inform the petitioner in all fairness that the matter was receiving their consideration and was not to be treated as dropped or at least they should have ordered the further inspection contemplated by that letter.
25. In view of the fairly detailed examination of the material before us, I have no hesitation in coming to the following conclusions:
(1) No relevant material to show the persistent failure of any legal obligations on the part of the petitioner-proprietor in this case has been made out to exist.
(2) No relevant material to make out the incapacity or unfitness of the proprietor to manage his property 'owing to' such persistent failure has been made out to exist.
(3) At any rate such material as may have been available cannot be legally sufficient to support such conclusions.
(4) The Government do not appear to have appreciated the legal requirement that not only both should exist, but the first must be the cause and the second must be the effect.
(5) Having regard to the report of the Collector no further action appears for the time to have been contemplated, and it is not unlikely that the proceedings initiated against the petitioner by notice served under Section 14 (1) were suddenly revived and his disqualification was. declared without consideration. On these findings, it must be held that the statutory power has been invoked by the Government without the exercise of proper judgment and discretion and without caring to satisfy 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 correla- tion 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 Dhar-masala Constituency, which is said to comprise the petitioner's estate Shri Motilal Pandit, whose name has been referred to in the petitioner's affidavit, was the validly nominated candidate for the election and that the poll was to be taken for that constituency from the 1st January to 5th January, 1952. That candidate obviously was a Congress cadidate as appears from the symbol assigned to him, viz., two bulls with a yoke thereon.
The second circumstance that has been relied upon is based on a statement in the joint report (Annexure E-1 filed on behalf of the Government) of Shri G.N. Mohanty and Sri K.M. Patnaik in which it is stated that one Sri Biren Mitra and another Sri Nilamoni Routray attended the enquiry of their own accord, when that enquiry was being made on 1-12-1950. It is suggested that this indicates a political background for the enquiry. It is difficult, however, to connect that circumstance with the positive motive alleged as regards the action taken by the Government by its declaration dated 7-12-1951, both because of the lapse of time between the two dates and also because there is no evidence before the Court as to how these two persons were interested with the party-politics of the Congress which is alleged to be the motive force for the impugned action of the Government. It is no doubt true that I nave come to the finding that the action of the Government is arbitrary. That is, of course, quite enough to find that the Governmental action is mala fide in the legal sense. It is also doubtless well-settled that while the burden to prove the absence of bona fides rests upon the person who challenges the same, it is not a burden which requires proof to the hilt, but to render the same as reasonably probable. See '(1943) 1 K B 607'. But that criterion is only for the purposes of finding whether or not there has been a valid exercise of the statutory power. If the Court is called upon to decide the positive existence of an impugned wrong motive, it cannot iind the existence thereof unless it is proved to the positive satisfaction of the Court.
While, therefore, there is considerable room for the imputation made by the petitioner for the alleged motive, there is no proof of the positive existence oi the same. I must, accordingly, hold that the wrong motive alleged has not been made out. There is all the greater reason in this case for not coming to a positive conclusion as to the wrong imputation ascribed, because 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 oi 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 synchronised 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 reported after an enquiry held with notice to the proprietor under Section 14 of the Act that there is no case for declaring him disqualified, the Government have not got the power to declare the proprietor to be disqualified, contrary to the opinion of the Collector. This argument appears to be attractive and sounds as being in consonance with the dictates of equity, having regard to the somewhat novel and drastic power which has been vested in the Government by the Orissa Act, under Clause (f) of Section 10. In view of my learned brother whose judgment I have had the advantage of reading, this argument is reinforced with reference to the contrast in the language of the relevant provisions of the Bengal Act and the Orissa Act, as also with reference to the consideration of the rules thereunder and the powers and the responsibility of the Collector of the District. On the other hand, however, it is to be noticed that in the corresponding Central Provinces Court of Wards Act of 1894, also arising out of incapacity to manage the property on a ground corresponding to Clause (e) of Section 10 of the Orissa Act, the local Government appears to have the power to make the declaration without any reference to the report of the Collector or the recommendation of the Court of Wards. In fact, no section provides for it; but on the other hand, Sub-section (2) of Section 5 states that
'No suit shall be brought in any civil Court in respect of any declaration made by the local Government under Sub-section (1) of Clause (c).'
No doubt, Section 28 of the Bengal Act, as pointed out by my learned brother, specifically provides for action being taken by the State Government without any report from, the Collector in absence of any corresponding provision in the Orissa Act, it is certainly an argument in favour of the view that the Government have no power to make a declaration without a report from the Collector. But it does not follow that the Government's power to declare disqualification depends on the report from the Collector being 'in favour' of the declaration of disqualification. All that the absence of a provision analogous to Section 28 of Bengal Act, indicates is that without calling for a report, the Government cannot take any action. In the course of the arguments, I was at one time impressed with the suggestion that the report oi the Collector 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 inquiry, or by making only summary and ex parte inquiry. The true view of the sequence of the steps under Sections 13 and 14 taken together appears to me to be: (1) The Collector makes some sort of a summary inquiry; (2) On such inquiry, he has reason to believe that a proprietor in his district is or should be declared disqualified under Section 10; (3) He thereupon gives notice to the proprietor and affords him a reasonable opportunity to be heard and to adduce evidence; (4) He then submits under Section 14 a report of the inquiry that he has made setting forth all the circumstances of the case.
In the present case, it may be noticed that all the aforesaid four steps have been taken. It may happen, as it has happened in this case, that a report on an inquiry under Section 14 may foe favourable to the proprietor. It appears, however, to be clear from the wording of Section 13 that whatever the nature of that report may be, it is the duty of the Collector to submit that report to the Court of Wards. Such a duty is absolute having regard to the terms of the section, and is not conditional upon the Collector being of the opinion that the proprietor has to be declared disqualified. That the obligation to submit a report under the wording of Section 13 of the Act is absolute may be gathered by a comparison of Section 13 with the corresponding provision of the Madras Court of Wards Act, i.e., Section 12 thereof, from which this section has been virtually borrowed.
On a comparison between these two sections, it will be found that Section 13 of the Orissa Act is word for word the same as Section 12 of the Madras Act with the first proviso thereof omitted. The omission of that proviso is significant. That proviso indicates that in certain cases the Collector, though he makes an inquiry need not report the case to the Court, unless he is of the opinion that the Court ought to assume the superintendence of the property. The omission of any such proviso in the corresponding section of the Orissa Act is a strong argument for saying that the obligation to submit the report by the Collector is absolute and exists irrespective of the nature of his report. Once that conclusion is reached as the proper construction of Section 13 of the Orissa Court of Wards Act, what follows under Section 14 is that when the Court of Wards considers the Collector's report, it has also equally 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 Section 6 of the Act which enables the Provincial Government to revise, modify or reverse any order passed, or, proceeding taken under the Act, it appears to me, difficult to hold that, if either the Collector or the Court of Wards or both are not in favour of declaration of disqualification, the Provincial Government has no power to make any such declaration. As at present advised, I am inclined to think that the power of the Government under Section 16 is not dependent upon the previous expression of the Collector's opinion and of the opinion of the Court of Wards in favour of such a declaration being made. Of course no responsible Government would normally disregard the concurrent opinion of both. Undoubtedly, however, the existence of a report of the Collector based on an inquiry under Section 14 and the existence of a recommendation by the Court of Wards after taking into consideration the report of the Collector, are conditions precedent for a declaration to be made by the Provincial Government under Section 16 of the Act irrespective of the nature of the opinion expressed either by the Collector or by the Court.
If that is the position in respect of a case where the Collector initiates proceedings suo motu, it appears to me to follow all the more to be so where under the proviso to Section 13, the Provincial Government has called for a report. In my opinion, the power of the Provincial Government to come to its own independent conclusion on the materials submitted to it in compliance with Sections 13, 14 and 15 must be upheld. I am, therefore, not Inclined as at present advised, to uphold the contention of the learned counsel for the petitioner on this part of the case.
28. Irrespective however of this legal argument, the fact that in this case the report of the Collector is in favour of the petitioner has a substantial bearing on the challenge to the bona fides, and the consequent invalidity of the declaration made by the 'Government. That report as well as the somewhat perfunctory recommendation of the Court of Wards, un-doubtedly cast on the Government the heavy burden of substantiating the relevancy and sufficiency of the material on which the declaration has been made and for the conclusion which resulted in that declaration. For instance, in a case of this kind, if there is on the record a closely reasoned Collector's report in favour 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 the Government in making a declaration under Section 16 has exercised a quasi-judicial function behind the back of the petitioner and without giving him an opportunity to be heard against the making of the declaration. He contends that this is a violation of the principles of natural justice and that therefore the declaration is void, and, on that ground alone. Learned counsel has treated us to a very elaborate argument as to the application of the principle of audi alteram partem In connection with the quasi-judicial determinations of administrative bodies who are vested with the statutory power to interfere with the property or other rights of individuals in certain prescribed circumstances. Quite a catena of recent cases on the point have been brought to our notice, of which it is sufficient to notice the latest case in 'AIR 1952 Cal 656 (N)', since it notices most of the other recent cases. But I do not feel called upon to deal with that argument at any length for the purpose of this case. As at present advised, I am inclined to think that the principle of natural justice has been fully provided for in such a case, as this, by Section 14 of the Act. It appears to me that the entirety of the steps contemplated, from Sections 13 to 16 is a single transaction preceding the final determination by the Government. Notice and opportunity for hearing and for adducing evidence has been specifically provided for in Section 14. That such an opportunity is given only be-fore the Collector who collects the material and submits his report, does not render this any less an opportunity sufficient to satisfy the principles of natural justice.
The cases of the House of Lords reported in * 'Board of Education v. Rice', (1911) A C 179 '(R) and -- 'Local Government Board v. Arlidge', (1915) A C 120 (S) are, to my mind, authority for the position that if as a fact the party affected had the opportunity of presenting his case and of fairly putting forward the material on which he relies, the principle of natural justice does not seem necessarily to require that there should be a personal hearing also by the very person on whom rests the responsibility of arriving at the quasi-judicial determination. Learned counsel in his arguments tried to distinguish the case in '(1915) A C 120 (S)', by pointing out that in that case the person concerned was given the opportunity 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 to hold prima facie that the action taken by the Government in this case is not open to challenge on the ground of defective procedure or non-observance of the principles of natural justice.
30. Learned counsel for the petitioner has also argued that the recommendation of Shri V. Ramanathan in the present case (which is a statutory pre-requisite for the declaration by the Government under Section 16 of the Act) is not valid. He draws our attention to Section 5 of the Orissa Court of Wards Act, 1947, which states that
'The Revenue Commissioner shall be the Court of Wards for the areas for which the Act extends.'
He also draws our attention to the Orissa Board of Revenue Act of 1951, which in Section 3 thereof enacts that:
'All references in any enactment to the Revenue Commissioner shall be construed as references to the Board'
as constituted under that Act. His argument therefore is that after the passing of the Orissa Board of Revenue Act of 1951, the Court of Wards is the Full Board of Revenue and it cannot act for purposes of the Court of Wards Act through its individual members. On that assumption, learned counsel urges that, in this case since the recommendation of the Court of Wards purports to be that of a single member Shri V. Rarnanathan, it is invalid. Learned counsel recognises that under Section 5 of the Orissa Board of Revenue Act of 1951, the Board with the approval of the State Government may distribute its business and provide for the disposal of any business of the Board by a single member. But he contends that that section applies only to what may be called the 'duties of the Board' as provided in Section 4. He points out that the 'business' of the Court of Wards is not one of the duties so allotted to the Board under Section 4 of that Act.
There are two answers to this contention. In the first place, in spite of the wording of Section 4(1) of the Board of Revenue Act of 1951, which shows what the duties of the Board 'shall be and are declared to be', it is reasonable to construe Sections 3 and 4 harmoniously and to hold that the duties vested in the Board by virtue of any other Acts to which Section 3 applies, must also be taken to be the duties of the Board under this Act and that the duties under 'both' the Sections 3 and 4 are contemplated as 'the business' of the 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 very proprietor. Such a deprivation of management standing by itself, appears to fall neither within Sub-article (1) or Sub-article (2) of Article 31 of the Constitution. The case reported in -- 'Chiranjit Lal v. Union of India', AIR 1951 S C 41 (T) may be referred to in this connection. As regards the applicability of Article 19(1)(f) taking along with Sub-article (5) of the said Article, I should require a more elaborate argument than what we have heard at the hearing of this application and a more careful consideration before I hazard the expression of any prima facie opinion on this matter. Section 10(f) of the Act is a new and drastic provision in the Orissa Court of Wards Act and its constitutional validity may require a closer scrutiny when it directly arises.
32. In the view that I have formed on the facts of the case as indicated, the exercise by the Government in this case of the power under Section 16 of the Orissa Court of Wards Act must, for legal purposes, be taken to be arbitrary and lacking in bona fides. The declaration issued by the State Government under Section 16 of the Orissa Court of Wards Act, dated 7-12-1951, against the petitioner disqualifying him, must be quashed and the possession of the Estate taken by the Court of Wards in pursuance thereof must be restored to him. We direct accordingly.
This application is allowed. The petitioner will have his costs from the Government assessed at Rs. 500/-.
33. The petitioner is the proprietor of the permanently settled estate of Madhupur and owns several temporarily-settled estates adjoining it, in the district of Cuttack. On 7-12-1951, the State Government in the Revenue Department issued Notification No. 9876-R, under Section 21 of the Orissa Court of Wards Act (Orissa Act 26 of 1947) declaring the petitioner to be a disqualified proprietor under Section 10, Clause (f) Sub-clause (iv) of the Act, and ordered the Court of Wards to assume superintendence of the properties of the petitioner. Possession of the properties both movable and immovable was taken over by the Collector on 8-12-1951, though the order of the State Government declaring the petitioner to be a disqualified proprietor was received by him by post only two days later. The petitioner seeks in these proceedings to challenge the validity of the order of the State Government on the ground that it is not an 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. Motilal Pandit was encouraged by the official Congress Party to nurse the Dharamsala constituency which comprises the Estate of the petitioner. It is alleged that following these events, and with the co-operation of a few disgruntled tenants and enemies of the petitioner, some complaints were made against him to the State Government which ultimately led to the institution of an enquiry in November, 1950. This enquiry was conducted, without notice to the petitioner and purported to be a preliminary enquiry into the complaints of the alleged irregularities and illegalities said to have been committed by the petitioner. On 6-12-1950, the Collector of Cuttack sent a notice under Sub-section (1) of Section 14 of the Court of Wards Act to the petitioner, specifying eight charges of mis-management of the Estate and calling upon him to show cause why he should not be declared a 'disqualified proprietor' under Sub-clause (iv) of Clause (f) of Section 10 of that Act.
The petitioner filed a written statement denying the charges and a thorough enquiry was made by the Collector. Thereafter, on 24-2-1951, the Collector, Sri M.N. Guha, sent an exhaustive report dealing with ?il the charges. He held that none of the charges had been proved and that no agrarian trouble was apprehended. He reported that in his considered opinion there was no ground for taking over the management of the Estate by the Court of Wards. Later however- the Collector wrote a D.O. letter to the petitioner (No. 1734 (Wards) dated 31st March 1951), in which he pointed out that the petitioner should not collect a fee of four annas from any tenant who filed petitions before him as it contravened Section 84 of the Orissa Tenancy Act. He also advised the petitioner to devote his personal attention to office work and to see that mutation cases that were pending in his office were disposed of expeditiously and to appoint some suitable person as manager before he (the Collector) inspected the Estate again. But no such inspection appears to have been made by either Mr. Guha or by his successor Sri P.C. Mohanty. The petitioner then avers that on receipt of the Collector's report the Minister in charge of Revenue ordered in April, 1951, that no further steps were to be taken against the petitioner.
Thereafter, it is alleged, the petitioner was approached by persons interested in the candidature of Shri Motilal Pandit to canvass for him, which the petitioner refused to do, with the result that his relations with 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 the tenants was drawn up which was to be implemented through a Special Officer to be appointed for the purpose. Accordingly a Sub-Deputy Collector was appointed as Special Officer to give effect to the terms of the settlement. That Officer reported that some of the terms could not be implemented as the records of the Estate were in a chaotic condition and he recommended the appointment of a capable manager. Sometime, later Government directed that a thorough enquiry should be conducted into the affairs of Madhupur Estate through an experienced & impartial revenue Officer & in accordance with that direction a preliminary enquiry was made by the Court of Wards, Deputy Collector & the Subdivisional Magistrate. Jajpur, which culminated in the issue of the notice under Sub-section (1) of Section 14 of the Court of Wards Act, on 6-12-1950, by the Collector of Cuttack. In para. 1 of the affidavit the deponent avers that
'the Government, after considering the report of the Collector and all the, materials on which it was based, as also the recommendation of the Court of Wards came to the conclusion that the following charger, against the proprietor of the Estate were proved:
(i) He was not granting receipts to Dhuli-bhag tenants in contravention of the provisions of Section 65 of the Orissa Tenancy Act.
(ii) He was collecting a fee of four annas on each petition filed by his tenants, in contravention of Section 84 of the Act.
(iii) He contravened the provisions of Section 3 of the Orissa Forest, Communal and Private Land (Alienation of Prohibition) Act, 1948, by leasing out gochar lands in Mouza Kus-thira, Bausakanta and Madhupur and by leasing out 0.43 acres of 'private land in Baun-sata to one Madhu Baral and also by leasing out communal lands in village Andhei Guda.
(iv) A large number of mutation petitions were pending for years together without any action.
(v) The proprietor's office was in a chaotic condition.
In para. 16 of the affidavit it is denied that any order was passed by the Minister in charge of the Revenue Department directing that no further steps need be takers against ha proprietor. In para. 21 of the affidavit the deponent avers that the delay that had occurred between January 1951 and December 1951 was due to the fact that the matter was under careful examination by the Board of Revenue and the Government. In the subsequent 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 Es-tate, 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 informa-tion 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 cf 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 H.K. Maharab, the then Chief Minister, copy of a letter addressed by the petitioner on 4-6-1949 to the Collector to the effect that he was implementing the settlement arrived at between him and the Chief Minister in accordance with the suggestions of the Special Officer, an extract of a letter of Government dated 26-8-1950 to the Secretary to the Revenue Commissioner directing that an enquiry be made into the affairs of Madhupur Estate through an experienced and impartial Revenue Officer, copy of a report of the enquiry made by the Wards Deputy Collector jointly with the Sub-divisional Officer, Jajpur in December 1950 and copy of Mr. Guha's report dated 24-2-1951 without the enclosure.
37. The statement of the petitioner that he sent a reply letter on 30-6-1951 to the D.O. letter No. 3346 dated 8-3-1951 addressed to him by the then Collector Shri P.C. Mohanty is' denied by the opposite parties. But otherwise most of the facts are, more or less, admitted. It is not so much the facts themselves, as the inferences to be drawn from the established facts that are in issue. The letter of the petitioner, receipt of which is denied by the opposite parties, does not in any way affect the consideration of the proved facts. In that letter, the petitioner merely pointed out that he was taking steps to bring the mutation register uptodate and complained that a malicious conspiracy was going on against him to bring him to trouble. The report of Mr. Guha shows that the petitioner filed a written statement before him on 28-12-50 and that the records of the Estate were inspected by the Sub-divisional Magistrate, Jajpur, on the 20th and 21st of February 1951 and that a copy of his report was enclosed. But that report has not been produced, nor has any reference been made in the affidavit to the written statement filed by tha petitioner.
The report shows that some tenants were examined partly by the Sub-divisional Magistrate and partly by the Collector himself. At several places in the report I find references to 'statement' and 'gist of statements' of witnesses examined by either the Subdivisional Magistrate or by the Collector. If witnesses had been examined by the Subdivisional Magistrate and the Collector, and since the Collector refers to 'the statements' of such witnesses, it is reasonable to infer that those statements were reduced 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 cf 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. Even, the written statement of the petitioner, filed before the Collector on 28-12-1950, does not appear to have been taken into consideration either by the Court of Wards or by the Government, as no reference is made to it at all in the lengthy affidavit filed by Sri Ramanathan.
39. Another fact that emerges from the evidence is that the petitioner makes a categorical and definite statement in his affidavit that the Minister in charge of Revenue ordered in April 1951 that 'no further steps were to be taken until further order' and that the proceedings were virtually dropped. This is emphatically denied by the opposite parties. It is possible that although no order was passed in writing by the Revenue Minister he might have told petitioner that no further steps should be taken under the Court of Wards Act. The Minister for Revenue has not filed any affidavit denying the allegation of the petitioner, even though the State Government is opposite party No. 1 and the facts deposed to in the affidavit of Sri Ramanathan are, according to his affirmation, based on official records. It is unfortunate that the petitioner's affidavit has been exceedingly badly drafted and contains a great deal of in-ferences, surmises and arguments, its chief feature being lack of important particulars on many essential points. The petitioner should have made a definite allegation as to how he came to be aware of the order of the Revenue Minister directing that no further steps be taken against his estate under the Court of Wards Act. It may be that the great inconvenience of ripping up whole facts upon affidavit evidence affords a cogent reason for the omission, but it cannot be said, for that reason, that the allegation has been established, though it is likely that the petitioner had the information from the Minister himself.
40. The question now is whether, having regard to the report of the Collector, followed up by the recommendation of the Court of Wards nearly 10 months later, and having regard to the failure of the opposite parties to disclose specifically all the materials said to have been considered by Government, it has been established that the Government exercised the powers vested in it by the Act reasonably and bona fide. In order to determine this point it is necessary at this stage to review the provisions of the Act and the powers vested by it in the Government.
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 having the management of their own lands by the rules prescribed for the Decennial Settlement, that is to say, females, minors, lunatics, and persons of notorious profligacy of character. See the Preamble to Bengal Regulation 10 of 1793.
That regulation lays down that the estates of disqualified proprietors are to be taken away by managers and that the Court of Wards is to execute the trust of managing their estates. Later on, Acts for the establishment, constitution and control of the Court of Wards were passed by almost all the Local Governments. At the time of the creation of Orissa Province in 1936, the different areas that had been amalgamated and constituted into one separate Province were governed by the different Provincial Acts referred to above. The Orissa Court of Wards Act, 1947, adopted the definition of the word 'proprietor' and few other provisions, occurring in the Madras Act, and enlarged the scope of the word 'disqualification' in Section 10, by adding Clause (f) which, so far as it is relevant to the present case, is in the following terms:
'Proprietors declared by the Provincial Government to be incapable of managing or unfitted to manage their property owing to-
(iv) their persistent failure to discharge the duties imposed on them by any law for the time being in force'.
I shall deal with this clause later, but I should point out at this stage that the duties imposed on the proprietors by the Orissa Tenancy Act are not identical with those imposed by the Madras Estates Land Act. Chapter II of the Orissa Court of Wards Act, 1947, deals with the constitution, jurisdiction and powers of the Court of Wards, and says that the Court shall be subject to the control of the Provincial Government who may, if they think fit, revise, modify, or reverse, any order passed, or proceedings taken, under this Act. The Court has got similar powers to revise modify, or reverse any order or proceeding of the Collector. Section 10 of the Act describes, rather than defines, the person or persons who may be declared to be disqualified for the management of their property. Section 13 is an important provision and reads as follows:
'Whenever, any Collector after making such enquiry as he deems necessary, has reason to believe that any proprietor in his district is, or should be, declared 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 Govern-ment 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, under its management and superintendence, the person or property of the proprietor has to be notified in the Gazette under Section 21. On such notification the proprietor shall be deemed to have become a ward under the Court. It will be noticed that, under the proviso to Section 13, the Court or the Provincial Govt. may call for a report on any case 'if deemed necessary' from the Collector. And it is conceded that such a report when received should go through the Court and with its recommendation, to the Provincial Government, before any action can be taken under Section 16 of the Act.
42. On behalf of the State, it was contended that the State Government has got the power to declare a proprietor to be 'a disqualified proprietor' under Section 16, irrespective of a report from the Collector or irrespective of the recommendation of the Court, as the ultimate decision lies with them. But such a position is clearly untenable. A reference to the relevant provisions of the Bengal Act and those in force at present, under Act 24 of 1947, will make this point clear. Section 27 of Bengal Act 9 of 1879 which was in force in this Estate before the enactment of the Orissa Court of Wards Act, 1947, was as follows:
'Whenever any Collector has reason to believe that any person residing in his district or being the proprietor of an Estate, borne on the revenue roll of his district, should be declared or adjudged to be a disqualified proprietor under Section 6, he shall make such enquiry as may be deemed necessary, and if satisfied that such a person should be so declared or adjudged, shall make a report of the same to the Court and the Court shall on receipt of such report, make such order consistent with this Act as may seem to it to be expedient.'
Section 28 then provided as follows:
'Nothing in Section 27 shall prevent a Court or the Local Government from putting tha provisions of this Act into force 'without any
report from the Collector'.'
But no such absolute power was vested in the Government under the Madras Court of Wards Act.
The Orissa Act of 1947, however, adopted Section 12 of the Madras Act with slight modifications but the proviso to Section 13 is a reproduction of the Madras provision conferring on the Court as well on the Government the power 'to call for a report' on any case 'if deemed 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 ihe 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 sre 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 be made to take over the Estate if the proprietors have male advisers who are willing and capable & can be trusted to look after their affairs. In the case of proprietors who apply for protection, that is, those falling under category (e), the 'Collector' should bear in mind the principle that
'ordinarily no recommendation should be made if the difficulty in the management of the estate which is experienced by the proprietors is owing entirely to their extravagance, weakness of character, or inability to shake off outside influence. If the zamindars are led to think that they have the Court of Wards to fall back upon much thoughtless extravagance will probably result.'
Rule 84 says:
'If, on such summary enquiry as the 'Collector' may make it should appear that there is a fair and reasonable probability of the property being managed with success and extricated from any liability to which it may be subject, the special commissioner should recommend to the Court that they accept charge of the property. But if the property is so embarrassed that its extrication within a reasonable time seems hopeless, it would be useless to accept the charge.'
Rule 85 says that the 'Collector' should consider before sending up his recommendations for the assumption of charge of an estate,
'the number of estates already under management of the Court and whether he can ensure adequate supervision over more estates.'
The same considerations would apply in taking action under Clause (f) of Section 10 of the Orissa Act, in the absence of any specific rule to the contrary. It is clear that these rules place the responsibility upon the Collector of deciding whether or not an estate should be taken over for management by the Court of Wards. The discretion to decide the matter is vested only in the Collector whose responsibility it is to guide, correct and control the proprietor within his district. He is the person who has the means and the opportunity of knowing the character and conduct of the proprietor concerned, the condition and the. circumstances of his district, and the probable motive of those who make a complaint against him; and, above all, he occupies a position which enables him to interpose admonition and advice which may render recourse to the law unnecessary. It is the responsibility of the Collector primarily to see that the security of revenue is not imperilled and that there is no campaign by the tenants or others against the proprietor in-capacitating him from the due management of the Estate.
Section 13 is, therefore, imperative in lan-guage 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 Government with its recommendation.'
This implies that the Court is bound, no lessthan the Collector, to take all the circumstancesof the case into consideration before makingits recommendation to Government. Ultimately,the Government, after considering all the materials, have to be satisfied whether it is expedient in the public interest that the proprietorshould be declared a disqualified person. Thisin my opinion, is the structure and policy ofthe Act.
44. In view of these provisions, and particularly in view of what appears to me to be a marked departure, in the Orissa Act of 1947, from the provisions of the previous Act, in regard to the powers of Government to take over an Estate 'suo motu', I am disposed to think that the State Government have no power to put the Act into operation in the absence of a report from the Collector recommending that a certain proprietor should be declared to be disqualified to manage his estate. 'A fortiori', when the report of the Collector is in favour of the proprietor as, indeed, is the case here, and discountenances any action under the Court of Wards Act, the power given under that Act cannot be invoked by Government. It was suggested during the course of the arguments that such a construction of the provisions of the Act would unduly restrict the power of Government. But, in my opinion, the intention of the Legislature seems to be very clear, as I will show presently.
45. Before the Court of Wards Act was passed in the year 1947, the State Government by virtue of the provisions of the pre-existing Bengal Act had the extraordinary power of taking over the estate of a proprietor regardless of the report of the Collector. But that power, as I have shown above, has been expressly taken away in the new Act and I am not inclined to import any such power by implication. Such a construction is also, in my opinion, reasonable having regard to the responsibility of the Collector to see to the proper management of the estates within his jurisdiction after taking various circumstances into consideration. Whether there has been a 'persistent failure' on the part of a proprietor 'to discharge the duties imposed on him by any law for the time being in force' is a matter that can only be judged by the man on the spot, and not by a Minister who is not in direct and immediate contact either 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 justi- fication 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 misuse his discretion, but so may a Minister or a party who complains. But it is reasonable to think that the Collector, who is in immediate and intimate touch with the estate and its conditions, is not more likely to err than any other person. In spite of the possibility of abuse, therefore, I can see nothing improbable in the Legislature having intended to confide the discipline over the proprietors to the good sense and good faith of the Collector. This appears to me to be a valuable safeguard provided by the Legislature against the harassment of a proprietor.
46. There are also other safeguards. The Court's recommendation on the report of the Collector is one such. The Court is bound to consider the Collector's report before recommending the case to the State Government. This is clear from the language of Section 15 of the Act which says that 'the Court shall consider and report the case, with its recommendation'. One of the meanings of the word 'recommendation' is to introduce a thing with approbation or commendation to a person in order to induce acceptance. The plain meaning and purport of this section is that if the Collector reports a case for disqualifying a proprietor and the Court recommends that such a step be taken, the State Government must be placed in possession of the report as well as the recommendation. If the Court differs from the Collector it may 'if it thinks fit' revise, modify, or reverse any such order or proceeding of the Collector, assuming as I do that the report of the Collector is a 'proceeding' under Section 13 of the Act. It is possible that two right minded men may honestly take different views of what is right in the same matter.
It is, therefore, provided by the Legislature that the Court may 'modify, revise or reverse' the order of the Collector. The words 'if it thinks fit' cannot refer to thinking under the influence of zeal or prejudice, without any substantial ground to support it. The Court has the discretion to think about the propriety of revising or reversing the Collector's order on grounds that appear proper and fit to it, after exercising its judicial mind, and not merely upon grounds of the existence of some complaints by, say, a few disgruntled agitators in the Estate. These are words introduced to mark more clearly that an alternative power 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 the property of a proprietor should be managed by the Court. It is well to remember that to deprive a person of the right to manage his properties constitutes an encroachment, a serious encroachment, on his fundamental right to enjoy his property according to his choice and pleasure. That section which vests the power in the Government to displace a person from the enjoyment of his property in the public interest is, in a sense, punitive and should be strictly construed. The apparent harshness of the power vested in the Government is mitigated by the insistence by the Legislature on a report from the Collector, in the first instance, giving reasons, to be followed by a recommendation from the Court based on the Collector's report. This is a guarantee that the power vested in the Government will not ba unjustly or inconsiderately exercised. Whether it is 'expedient in the public interest' is a matter to be judged, not by the Minister alone, but by the Collector, the Court and Government collectively. It may ba that the public are interested in the matter. But in certain circumstances public interest mav require that a certain estate should not be taken over by Government. Both the interests have to be consulted and taken into consideration before the State Government can declare its 'satisfaction' that it is expedient in the public interest to take over the management of an estate.
48. Another point that requires to be noticed in this connection is the repeated use of the word 'may' in the Sections vesting the power either on the Court or the Government. Sections 6, 7, 9, 16 and 17 provide such instances. The use of the word ''may' in my opinion suggests that the power conferred is permissive and not compulsory. Prima facie the natural meaning of the word 'may' is to give a discretion. While it confers an authority and a power to take a certain action, it creates no obligation on the donee of the power to follow a particular course of conduct in the event of certain circumstances existing. It follows that the exercise of the power conferred depends upon proof of the particular case out of which such power arises: see -- 'Macdougali v. Patterson1, (1851) 138 E R 672 (V). The Act gives an express power to do that which, but for that power, would be; a serious invasion of property rights. If the power vested 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, although bad faith has been specifically alleged -- and the antecedent circumstances would justify such a belief -- the State Government has not chosen to disclose the materials upon which it was 'satisfied' with regard to the action it took. I am prepared to concede that the 'satisfaction' of Government is a thing that cannot be questioned in a Court except in very exceptional circumstances.
The only power of the Court to look into the evidence before the Minister is for the purpose of seeing -- and only for the purpose of seeing -- whether the order that has been made is, having regard to the subject-matter within the powers given to the Minister under the Act. But, as has been observed by the Supreme Court in -- 'The State of Madras v. V. G. Row', AIR 1952 S C 196 (W):
'the nature of the right infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to he remedied thereby, the disproportion of the imposition, the prevailing conditions of the times, should all enter into the judicial verdict.'
The Court must be satisfied that the Government exercised the powers vested in it, in strict conformity with private rights lawfully exercisable by a citizen. The manner in which the Government is satisfied the Court has no right to examine. But where, as in this case, the terms of the statute are permissive and where it is Left to the discretion of persons empowered to determine whether the general powers committed to them shall be put into execution or not, a fair inference is that the Legislature intended that the discretion should be exercised within the strict limits of the law.
49.The above being my view of the nature of the power vested in the Government under the Court of Wards Act, 1947 I shall now proceed to examine whether the proprietor of Madhupur Estate has been guilty of a 'persistent failure to discharge the duties imposed on him by any law for the time being in force', and whether the Government acted in strict conformity with the Act -- the condition precedent to Government's interference being the proprietor's 'persistent failure'.
50.The word 'proprietor' has been defined in the Orissa Tenancy Act as meaning a person 'owning, whether in trust or for his own benefit, an estate or part of an estate'. 'Estate' has been defined 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 wellknown 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 are alienable though a few aro impartible. On a plain reading of the Act I am inclined to think that the definition of the word 'proprietor' in the Orissa Act cannot take in the owner of an estate which is alienable, for it cannot be said that such a person has only a life-interest in the land. It would also be an extravagant view to hold that the word 'proprietor' means any person who owns land. If that were so, it would defeat the purpose and policy of the Court of Wards Act.
As I have already observed above, the Court of Wards is a statutory body of trustees appointed to manage the Estate of proprietors with a view to secure realization of revenue. It had no jurisdiction over 'owner of land' as such ever since its creation over a century ago. I cannot therefore persuade myself to hold that 'proprietor' as defined in the Orissa Court of Wards Act includes every person who owns land. The expression 'who owns or has a life-interest' can therefore refer only to the owner of a life-interest or a person such as a Receiver or mortgagee of that life-interest who may be said to 'have' that life-interest within the meaning of the definition. But there is another difficulty in applying the Act which appears to me to be even more insuperable. Both the recommendation of the Court of Wards and the notification of the State Government refer to the management of an 'estate'. The word 'estate' has been differently defined in the various Acts that are in force: See for instance the Bengal Land Revenue Sales Act (Act 7 of 1886), the Bengal Survey Act (Act 5 of 1875); the Bengal Land Registration Act (Act 7 of 1876); the Bengal Cess Act (Act 9 of 1880); the Estates Partition Act (Act 5 of 1897); and the Bengal Settled Estates Act (Act 3 of 1904). In-all these enactments 'estate' is differently defined and in the last mentioned Act it includes money and jewellery. I can find no justification for taking the view that the use of the word 'estate' in the recommendation as well as in the notification in this case should be understood only in the sense in which that word has been defined in the Orissa Tenancy Act.
One of the charges against the petitioner is that he contravened the provisions of Section 3 of the Orissa Communal, Forest and Private Land (Prohibition of Alienation) Act. This Act prohibits a 'landlord' as defined in the Orissa Tenancy Act, from alienating communal lands. I cannot see how a orcprietor 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 the term proprietor occurring in the Madras Act and the omission to define the term 'estate' as it was in the Bengal Act is unfortunate. The Bengal Act uses the word 'proprietor' in its ordinary sense as a person owning property. When it refers to a proprietor of an estate as defined in the Act, it includes all owners of estates as defined therein. The Madras Act is equally consistent with the land laws of that State where the proprietor of an impartible and inalienable estate has only a life-interest. But the Orissa Act is a curious hotch-potch of both, creating an anomaly in its applicability to estates which are governed by different systems of land tenures in the different parts of Orissa. Unfortunately, this point was not argued at the Bar and a great deal of the argument addressed to us was addressed less on the true construetion that has to be put on the Act and the Acts that preceded it and more upon the principles of natural justice and the failure to give notice to the proprietor. Both the petitioner and the Court of Wards have proceeded on the assumption that the petitioner is a 'proprietor' within the meaning of the Orissa Court of Wards Act, But such an assumption can by no means be conclusive, and this Court can declare that the steps taken by either the Court of Wards or the Government are in excess of the jurisdiction conferred by the Act: See -- 'Indumati Devi v. Bengal Court of Wards', AIR 1938 Cal 385 (X).
In that case the test formulated by the Judicial Committee in -- '(1874) L R 5 PC 417' (K) was applied by Panckridge J., who held that a decision of the Court of wards that the appli-cant is a proprietor within the meaning of Section 6, Bengal Court of Wards Act, 1879, is not conclusive if, having regard to the language of the Act and the admitted facts and documents, it is erroneous. It was also held in that case a declaration by the Court of Wards that a person is a disqualified proprietor is not a purely administrative act but a judicial act. His Lordship observed:
'it appears to me to be as much a judicial act to take away from the subject the right to manage his property in any lawful manner he may choose, after a declaration that he is incompetent to manage it, as it is to deprive him of it by sentencing him to pay a fine. Before the Court of Wards can take charge of the property after declaring a 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-yis 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 administrative kind. But sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also ascertain the facts, I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything.'
As stated by Viscount Haldane L. C. in -- '(1915) A C 120 (S)':
'the decision must be come to in the spirit and with the responsibility of a tribunal whose duty it is to mete out justice'.
It is in the light of these principles that the proceedings purporting to have been taken under the provisions of the Act have to be examined.
51. The impugned Notification No. 9876 R., dated 7-12-1951 recites:
'Whereas it has been recommended by the Court of Wards, Orissa, that Sri Brundaban Chandra Dhir Narendra, Proprietor of Madhu-pur Estate, in the district of Cuttack, should be disqualified under Sub-clause (iv) of Clause (f) of Section 10, Orissa Court of Wards Act (Act 26 of 1947).
And whereas the State Government are satisfied that the said Brundaban Chandra Dhir Narendra is incapable of managing and unfitted to manage his estate, and it is expedient in the public interest that his properties should be managed by the Court of Wards.
Now, therefore, the Government of Orissa, in exercise of the powers conferred by Section 16 of the said Act is pleased to declare the said Brundaban Chandra Dhir Narendra to be disqualified proprietor.....'.
The first paragraph of Notification makes no reference to the report of the Collector and the only ground given for the satisfaction of' the Government is the recommendation of the Court of Wards. The recommendation of the Court of Wards, adverted to in the earlier part of this judgment, would show that the Court did not consider the report of the Col-lector. It is at best what learned counsel characterised as 'a philosophical recommendation' --clarity being sacrificed to brevity. Mr. Rama-nathan does not say that the proprietor was incapable of managing or unfitted to manage his property owing to his 'persistent failure to discharge the duties imposed on him by any law for the time being in force'. On the other hand, in his recommendation, he points out the duty of the Government to 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 Government was drawn to the requirements of Section 10, Clause (f), Sub-clause (iv). All that the deponent affirms is that certain charges were proved but none of the charges set out in the affidavit even hints at a 'persistent failure' of the petitioner as a landlord to discharge the duties cast on him by law, which alone would give the Court good ground for declaring him to be disqualified. The only grounds on which the decision to declare him disqualified was taken, as appear from the materials placed before us, are the failure to grant receipts, unauthorised collection of petition fees, lease of gochar lands to private persons and bad management of office. All thqse may be isolated acts and may fall short of 'a persistent failure' to discharge his duties. It is not mere failure but persistent failure that would give jurisdiction to the Court of Wards to recommend a proprietor to be disqualified and the Government to take action under the Act. In these circumstances I have no hesitation in holding that the so-called 'recommendation' of the Court of Wards on which Government have based the impugned Notification is not a statutory recommendation within the meaning of the Act and that it must accordingly be pronounced invalid.
52. Another instance of such confusion of thought is to be noticed in para. 21 of the affidavit of the opposite parties in which it is said that
'the delay between January presumably a mistake for February 1951 and December 1951 is due to the fact that the matter was under careful examination of the Board of Revenue and the Government'.
This averment about 'careful examination' has, I regret to point out, been carelessly made as will be seen presently. The Board of Revenue sent up its recommendation to the State Government on 1-12-1951. Before that the 'matter' was not before Government. How could the State Government be said to have been 'carefully examining' a recommendation of the Court of Wards, or 'the matter' -- whether (whatever?) it means, between February 1951 and December 1951? Nor is it easy for me to believe that the Board of Revenue was 'examining' the matter during this long period of more than nine months because no document has been placed before us in proof of such examination. There was apparently no correspondence at all between the 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 recommendation of the Court of Wards does not say that public interests had warranted the taking ever of the management or that there was a persistent failure on the part of the petitioner to discharge his duties. Ex facie Government had no other material to come to such a decision. Though the correctness of the averment in para. II of the affidavit of Mr. Ramanathan to the effect that 'Government considered the report of the Collector and the materials on which it was based' has been challenged, no attempt has been made to support that averment by facts. I am, therefore, inclined to think that the power vested in the Government under Section 16 of the Act has not been exercised reasonably and the order declaring the proprietor to be a disqualified proprietor is a misuse of the power conferred by the Act.
54. Learned counsel for the petitioner next contended that the State Government did not act bona fide in the exercise of the power conferred on them by the Act. It was alleged that the Government took this extraordinary step in order to make the way smooth for the Official congress candidate contesting the elections that were then impending and in order to bring down the petitioner, who declined to give his support to that candidate, in the estimation of the people in his Estate. In support of this allegation we were asked to take judicial notice of certain gazette notifications in relation to the elections then impending. The list of valid nominations for the Dharmasala constituency was published in the Orissa Gazette, dated 23-11-1951, and it was announced that the poll would be taken from 1st January to 5-1-1952 for that constituency. It would appear that it was just a week after the publication of the list in the gazette, on 23-11-1951, that the recommendation of the Court of Wards was made and within a week thereafter the impugned Notification declaring the petitioner to be a disqualified proprietor was published. In the context of these facts we are asked to infer that the motive of the State Government in issuing the notification dated 7-12-1951 was oblique and not straight and that- their action was mala fide, not honest.
The statement of the petitioner that Sri Motilal Pandit was set up as a congress candidate and that the petitioner was dissuaded from contesting the elections has been sufficiently borne out by the fact that the petitioner himself 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 delay of over nine months that elapsed since the submission of the Collector's report, the impending elections, the fact that the Board suddenly stirred itself into activity and decided to make its recommendation to the State Government after the nominations had been gazetted, and the failure of the Government to disclose the materials, if any, which were considered by it, are, in my opinion, circumstances which weigh heavily in favour of the petitioner and against the opposite parties. It was not right, certainly not wise, for such a body as the Board of Revenue, to keep its plans secret and carry them out into execution without fair and frank communication with the Collector or with the proprietor whose interests were affected by its action. I cannot help thinking that if the petitioner had been informed of the irregularities charged against him, all this litigation and expense could have been avoided and he could perhaps have satisfied the State Government, had an opportunity been given to him, that the alleged irregularities had been rectified. It may be, as was contended by the learned Advocate-General, that the State Government was under no obligation to give notice to the petitioner before deciding to deprive him of the management of his Estate. The Act does not say, in express terms, that any notice is necessary. It does not say either that notice is not necessary. But there are cases in the books, and their number is not negligible, which have laid down that in all such cases decisions should not be taken ex parte, without giving an opportunity to the person affected to put forth his point of view. See -- 'King v. Minister of Health', (1929) 1 K B 619 (Z); -- 'Minister of Health v. King, Yaffe, Ex parte', (1931) A C 494 (ZA); -- 'Errington v. Minister of Health', (1935) 1 K B 249 (ZB); -- 'Horn v. Minister of Health', (1937) 1 K B 164 (ZC) and -- 'Offer v. Minister of Health', (1936) 1 K B 40 (ZD).
55. Having regard to all the circumstances I am satisfied that the Court of Wards had failed to comply with the statutory provisions of the Act, and that the State Government has acted in excess of the powers conferred on them and that the power vested in them has not been exercised either reasonably or bona fide.
56. It was next contended that a single Member of the Board of Revenue was not competent to act for 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;
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 constituted by the Orissa Board of Revenue Act of 1951. It is accordingly urged that the Board of Revenue, as a body alone, could act under the Court of Wards Act, 1947, as Section 5 of that Act empowers the Revenue Commissioner to be the Court of Wards.
Paragraph 16, Government of India (Constitution of Orissa) Order, 1936, says:
'There shall be a Revenue Commissioner for Orissa who shall discharge such functions as the Governor may, with the previous sanction of the Governor-General in Council, from time to time, assign to him and any provision in force immediately before the appointed day contained in, or made under, any enactment, shall have effect accordingly.'
By Regn. 22, published at p. 9 of the Orissa Gazette dated 1-4-1936 the Governor of Orissa passed a Regulation, in exercise of the powers conferred by para. 16 of the Constitution of Orissa Order, assigning to the Revenue Commissioner for Orissa in respect of areas mentioned in Column 2 of Schedule B, the functions mentioned against each such area in Column 3 of the said Schedule. Column 3 of Schedule B shows that the functions which were, on 31-3-1936, exercisable by the Board of Revenue, Bihar & Orissa, by virtue of any provision contained in or made under any enactment which was in force on 31-3-1936 in the Orissa Division of the Province of Bihar & Orissa were assigned to the Revenue Commissioner, Orissa, created by the Constitution of Orissa Order. When the Board of Revenue Act was passed in 1951 those functions of the Revenue Board which had heretofore been exercised by the Revenue Commissioner, Orissa devolved on the Board of Revenue as now constituted under that Act. Now, Section 5 of the Act lays down that
'it shall be lawful for the Board, subject to the approval of the State Government, to declare what portion of its business may be disposed of by a single Member or by two Members, what portion shall be reserved for decision of the Full Board.'
Section 6 provides that all orders passed and decisions made by one or more Members of the Board, in accordance with a declaration made under Section 5 or its proviso, shall be held to be orders and decisions of the Board. It is true that we have not been shown any declaration made under Section 5 of the Act assigning the business of the Court of Wards to a single Member of the Board. But I have no doubt that such a declaration 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 ghgfhcafift 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 contention. Sub-clause (f) of Clause (1) of Article 19 of the Constitution lays down one's fundamental right 'to acquire, hold and dispose of property'. Clause (5) of that Article is in the nature of an exception and says that
'nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of an existing law, in so far as it imposes or prevents the State from making any law imposing 'reasonable' restrictions on the exercise of any of the rights conferred by the said sub-clause, either in the interests of the general public, or for the protection of the interests of any scheduled tribe.'
The Court of Wards Act, as has been pointed out already, is an enactment designed to protect the estate against its being frittered away by mismanagement in the interests of the public revenue. It does not purport to deprive the owner of his right to hold property. The Court of Wards in fact does not acquire any title to or interest in the Estate whose management it takes over. Only it takes over the superintendence and management in the gene-ral public interest. It may be that in so far as the management passes from the hands of the proprietor to the Court of Wards it amounts to a serious restriction on the absolute power of the proprietor to manage it in any way he chooses. But I am not persuaded that it is not a 'reasonable' restriction when public interests warrant it. As at present advised, therefore, and having regard to the provisions in Clause (5) of Article 19, I would uphold (sic) the contention of learned counsel, as a general proposition, and rule the Act 'ultra vires' on that basis. It is however unnecessary to discuss this point any further in view of the conclusion I have arrived at on the validity of the recommendation made by the Court of Wards and the Notification of the State Government based on that recommendation.
58. In the result the declaration made by the State Government in Notification 9876-R., dated 7-12-1951 of the Revenue Department, should be pronounced ultra vires and must be quashed. Possession of the Estate should be restored to the petitioner. The petitioner 'shall have the costs of this petition, as directed by the learned Chief Justice.