Skip to content


Moideenkutty Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 32 of 1960
Judge
Reported inAIR1961Ker301
ActsConstitution of India - Article 226; Madras Preservation of Private Forests Act, 1949 - Sections 3(1)
AppellantMoideenkutty
RespondentState of Kerala
Appellant Advocate V.M.B. Menon, Adv.
Respondent Advocate V.P. Gopalan Nambiar, Government Pleader
DispositionAppeal dismissed
Cases ReferredRaghava Menon v. Inspector General of Police
Excerpt:
.....to emphasise that authorities vested with quasi-judicial powers would be well advised to assign reasons for their orders in such a form as to justify the orders being called what is described as 'speaking orders'.those words have been explained in rex v. , speaks of an unspeaking or unintelligible order he obviously means an order which gives no reasons, or does not explain in any way why the court made the order, but simply states that the court made such and such a conviction, order for removal or for quashing the poor rate, or other order of the sort, giving no reasons for doing so. it may not be unintelligible in one sense, but it is unintelligible in that it does not tell the superior court why the inferior court made that order'.the aforesaid observation as well as several..........forest officer, for a re-inspection by the assistant conservator of forests on the ground of the earlier report having been prepared in the appellant's absence, and, on july 8, 1957, the appellant again applied to the collector requesting a permit for cutting and removal of the 150 trees. the new application was accompanied by a list showing particulars of the trees to be cut and other documents. it appears that before the final order on this application was passed by the collector, a new report had been received from the forest officers which, was favourable to the appellant. but the collector on september 17, 1957, again refused permission which order is ext. p2 and reads as follows:'shri v. p. moideenkutty has requested reconsideration of the orders issued in collectors proceedings.....
Judgment:

Ansari, C.J.

1. This appeal is by the writ petitioner, whoso prayer for getting the order of September 17, 1957, by the Collector of Kozhikode, vacated has not been allowed. The circumstances. Under which the aforesaid petition has been filed in this court, can beshortly stated.

2. The appellant had, on May 10, 1957, obtained an agreement whereby he has been given a right to cut and remove 150 trees from the unsurveyed parts of the Kovilakam forests in Kanhirapuzha and Vadakkummuri Malavaram in Nilambur Amsom, Ernad Taluk. The lease (had?) been executed after a sanction under Section 3(1)(a) of the Madras Preservation of Private Forests Act, 1949, hereinafter referred to as the Act, and the appellant on May 12, 1957, requested the Collector of Kozhikode District, who has been impleaded as the second respondent to the writ petition, for permission to cut and remove 150 trees under Section 3(2) of the Act.

The Collector forwarded the application to the proper authorities for report and the Special Forest Range Officer reported against the permission being granted. The complaint in the writ petition is about the report being without the appellant's being asked to accompany the officer when he inspected and even the report to he without any visit to the area. On June 7, 1957, the Collector rejected the application, and the rejection order is marked as Ext. P-1. The relevant extract from the order runs as follows:

'....Enquiry shows that the area, where the applicant has marked the trees now, is the same area where he was working as per the permit granted in Malabar Collector's Procgs. D. Dis. 5603/56 dated 28-2-1956. It is therefore detrimental to the forest to grant the permit applied for. The application is therefore rejected'.

The appellant's case is that prior to having got the aforesaid order, he had applied to the District Forest Officer, for a re-inspection by the Assistant Conservator of Forests on the ground of the earlier report having been prepared in the appellant's absence, and, on July 8, 1957, the appellant again applied to the Collector requesting a permit for cutting and removal of the 150 trees. The new application was accompanied by a list showing particulars of the trees to be cut and other documents. It appears that before the final order on this application was passed by the Collector, a new report had been received from the forest officers which, was favourable to the appellant. But the Collector on September 17, 1957, again refused permission which order is Ext. P2 and reads as follows:

'Shri V. P. Moideenkutty has requested reconsideration of the orders issued in Collectors Proceedings L. Dis. 10327/57 dated 7-6-1957. No case has been made out for reconsideration in this case. The petition is therefore rejected'.

The appellant, on September 24, 1957, again applied, which was also rejected on November 1, 1957. This third order of rejection reads as follows:

'The Collector does not see any reasons to reconsider the orders already issued in Collector's Proceedings........ .The reconsidsration petition is rejected'.

Thereafter, the writ petitioner appealed to the Government under Section 4 of the Act, but failed. The Government order reads thus :

'Government do not find it necessary to reconsider the orders of the District Collector appealed against. The appeal is therefore rejected'.

Against the aforesaid failures to obtain the permission, the appellant filed the writ petition; but the learned Judge found that the several grounds taken to vacate the orders were net taken before the Government, and, therefore, the appellant should not be allowed to raise them for the fiist time in proceedings under Article 226 of the Constitution. Accordingly, the learned Judge dismissed the writ petition, and the appellant's learned advocate has urged the following grounds for the appeal being allowed:

1. The authorities have erred in treating the subsequent applications as efforts to have the earlier order reconsidered, the later applications being substantially fresh requests for permission with the report favourable to the applicant and with the objections about the earlier report being ex parte.

2. The orders rejecting the later applications are without assigning reasons, as to why the grounds urged for the permission being given were not acceptable; therefore these orders are illegal and should be vacated.

3. The Collector has throughout acted not as the authority deciding on requests, but has accepted merely the recommendations of the forest officer, which results in the decisions not being of the Collector.

4. Valuable rights had been lost by the decisions resting partly on considerations that were irrelevant.

3. We propose to adjudicate on the grounds in the hope that our decision would be of assistance, to those who are entrusted with discharging functions which are quasi-judicial. We have, when hearing this appeal, looked into the appellate records and the explanation of the Collector called by his appellate authority. That explanation is that the subsequent rejection orders were passed alter taking into consideration both the earlier and the later reports, and the earlier report was preferred. In these circumstances, we feel that the complaint of there being no adjudication of the grounds taken later by the appellant for the permission is not justified.

In any case the explanation does not justify, after vacating the Collector's orders already passed, an order from this Court in the form of mandamus for a consideration of the later applications. At the same time we wish to emphasise that authorities vested with quasi-judicial powers would be well advised to assign reasons for their orders in such a form as to justify the orders being called what is described as 'speaking orders'. Those words have been explained in Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw, 1951-1 KB 711 at p. 718 by Lord Goddard to mean as-follows :

'When Lord Cairns, L. C., speaks of an unspeaking or unintelligible order he obviously means an order which gives no reasons, or does not explain in any way why the court made the order, but simply states that the court made such and such a conviction, order for removal or for quashing the poor rate, or other order of the sort, giving no reasons for doing so. It may not be unintelligible in one sense, but it is unintelligible in that it does not tell the superior Court why the inferior court made that order'.

The aforesaid observation as well as several others, have been relied upon by one of us in Joseph v. Superintendent of Post Offices, Kottayam, 1960 Ker LT 1304: (AIR 1961 Kerala 197) wherein we had vacated that order complained against on the ground of its not having assigned reasons for the decision. Had the Collector in the case before us not explained to the appellate authority that the subsequent rejections been after both the reports been taken into consideration the conclusion from the order itself would not be so clear. That apart reasons are not assigned why one report been preferred to the other, which appear necessary in view of the complaint of the earlier report being ex parte, and without the officer's visting the area.

The fact, however, remains that directing a fresh adjudication of the earlier applications is not desirable, as the appellant is not precluded by the earlier orders from applying again, which application if filed would show grounds for permission being given, and the Collector would decide the application, after due regard to the rule that the orders in quasi-judicial proceeding should be speaking orders. Therefore the second ground is not sufficient for allowing the appeal.

4. Coming to the fourth ground it is clear that exercise of discretion must not be based on consideration of matters other than what is required by the statute and acting on this principle one of us had in Noohu Kannu Rowther v. Municipality of Changanacherry, 1960 Ker LT 807, held the refusal by the Municipality to grant permit to sell meat to be bad, because something, other than what was required by the statute, been taken into consideration when the order was passed. Therefore, had the appellant been successful in showing that when the Collector took the earlier report into consideration he was taking something irrelevant into consideration his argument would rest on very firm ground, but the position is otherwise.

The Collector had an earlier report and when a later report is presented on the same subject it is but proper that both should be weighed in order to reach the conclusion about which is to be preferred, It follows that the complaint of the officer's having taken something into consideration which he ought not to have done fails and in these circumstances, the ground of the decision being tainted by consideration of something irrelevant is not justified.

5. We come to the third ground of the decision not being really of the deckling authority inasmuch as the order rests on the office report. One of us have in Raghava Menon v. Inspector General of Police, Kerala, A. S. No. 220/60, D/-13-10-1960, 1961 Ker LT 35 : (AIR 1961 Ker 299); held that the rule of the 'authority, who hears, must decide' does not preclude administrative tribunals from reasonably delegating some of their functions. What is required of such authorities is that they must conscientiously apply their mind to the records of the case and reach their own conclusions on the material so placed. Judged from the aforesaid standard, we feel the rejection orders in the case, either of the original authority or of the appellate authority, are not so tainted. The appellate authority has called for the Collector's explanation, a note has been put on it and a conclusion been reached on the materials placed before the authority. In these circumstances, the appellate order cannot 'be said to be one not consciontiously reacked on the record before it; nor can the original order be said to be otherwise. This ground also therefore fails.

6. It was also argued that appellant is being deprived of valuable rights on a report, which was by an officer, who had not visited the area, and is not correct according to the later report of the forest department itself.

7. But the appellant is not precluded from making a fresh approach to the authorities concerned, which would conscientiously decide with reasons and on materials, which the appellant may wish to place before the authorities in further support of the fresh application for the permission. Should the deciding authorities desire to rest orders on materials, of which the appellant has no knowledge the authorities would at ford the appellant fair opportunity of meeting such materials.

After the reasons for the orders are fully given,, and, should the order be again adverse, the appellant would not find it difficult to challenge the order before the. Appellate Authority. Four years have lapsed since the applications were made in this case, and the authority should not be directed to decide on what was then alleged. Fresh facts may have arisen, or fresh reports may now be necessary, which the authorities considering the application may be anxious to take into consideration, and a new application for such purposes would be more appropriate. In these circumstances we would dismiss the appeal with costs, leaving the appellant to his right of filing a new application.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //