SIDBSANKAR NANDY

PRABARTAK SANGHA AND ORS.

February l, 1967

(K. SUBBA RAO, C.J., J.C. SHAH, J.M. SHELAT,

V. BHARGAVA AND G. K. MITTER, JJ.j

We.rt Bmga/ Non-Agricu/lura/ Tenancy Act (20 of 1949) 1. 2+-- Corufition.s for app/lcabilily of su1ion-Validity of seclion wi1h ref<r.nce to Con.stltulion of /,, d; a, Art. 19(1)(/).

We.rt Bengal EJtatu Acq11iJition Act (I of 1954), !. 2(1)(i)-No11- Agricultural tenant receiving rent from under-tenant-Whether "inth'- 111ediary .'"

llelpoodenl No. I, a Sociely registered under the Socielics ReJlistralioo Act, 1860, IOOk to lease a piece of land pan of which was already leased to Respondents 2 and 3.

Under the lease Respondent No. 1 was entitled 10 receive rent from Respondcnls 2 and 3. 1be latter transferred Ille land held by them to the appcllanl. Respondent No. 1 thereupon filed an application claiming the right of lraosfer under s. 24 of the West Benpl Non-Agricultural Tenancy Act. 1949. 1be trial Coun and the appc11ale coun dismissed the application bu1 the High Court, in revision, allowed it.

By special leave, the appellant came to thi• Coun. It was urged on behalf of the appellant : (i) that the terms of s. 24 of the aforesaid Tenancy Acl were not salisfied in the case, (ii) that s. 24 was ultra vlru as the riglj1 of transfer therein was based solely on the ground of vicinage and created an unreasonable reslriction oo lhe guaranteed right of the

apollant and res,'ondents Ne•. 2 and 3 under s. 19( 1 J ( f) of the Ccnsti tution and (iii) that Responden1 No. 1 being only entitled to receive rent from respondents 2 and 3 was an "inlermediary" within the meaning of 1he Wcs1 Bengal Estates Acquisition Act and therefore all its rights vesled under the Act in the Slale of West Bengal.

HELD: (i) Th-. Society was the immediale landlord of the land in dispute.

The said land was contiguous lo the other land in ils actual possession, and was bona fide required by it for the expansion of ils educational iru; titution.

The purpose for which it was required was covered by cl•. (b) and ( c) of s. 4 of the Tenancy Act. The "'rms of s. 24 of the Act were therefore fully salisfied in the ca.e. [562 B-EJ

(ii) The object of s. 24 is to ha\e an adjustment of the rights of landlords and lenanls. The consideration of the land being contiguous i• - the solo oonsiderarion. The principle of Bhau Rmn v. B. Baljnath .(iinglt's case is not therefore attracted.

The restriction contained in s. 24 cannot by any means be treated as an unreasonable restriction [565 DJ Bhau Ram v. Baijnath Singh. [1962] Supp. 3 S.C.R. 724, distinguish ed.

Ram Sarup v. Munshi, (1963] 3 S.C.R. 858, relied on.

(iii) Being itself a non-agricultural tenant the !st respondent was excluded from the definition of "intermediary" by the terms of s. 2(1 )(i) of the Estales Acquisition Act. [563 D-EJ

Clv11.

APPELLATE JuRISDICTIOS : Civil Appeal No. 1004 of 1965.

SH!BSANKAR v. PRABARTAK (Shelat, !.) 559

A Appeal by special leave from the judgment and order dated February 27, 1963 of the Calcutta High Court in Civil Rule No. 3723 of 1962.

D. N. Mukherjee and Dhurba Kumar Mukherjee, for the appellant.

B Sukumar Ghose, for respondent No. I.

The Judgment of the Court was delivered by

Shelat, J. This appeal by special leave relates to a plot of land admeasuring about 41 decimals situate within the municipal limits of Chandernagore.

 Respondent No. I is a society registered under the Societies Registration Act, XXXI of 1860. Its objects as set out in clause 3(s) of its Memorandum of Association inter alia are "to work, manage; develop, improve and utilise properties and business for the promotion of education, art, science, religion and charity or other useful objects." On March 23, 1941 one Kashinath Seal, the owner of a large plot of land, granted a permanent lease of the land in dispute out of the said plot in favour of respondents 2 and 3.

By a registered deed of lease dated September 29, 1944 he granted lease of the entire plot of land including the land in dispute to one Motilal Roy for 99 years. So far as the land in dispute is concerned, which as aforesaid was leased out to respondents 2 and 3, the said Motilal Roy acquired under this lease only the right of realising the rent. The said Motilal Roy was the founder of the !st respondent Association and was a mere benamidar thereof. By a deed of relinquishment dated March 14, 1953 he relinquished all his interest in the said plot in favour of the !st respondent Association. By a registered deed of sale with a condition for reconveyance dated November 3, 1960 respondents 2 and 3 transforred the land in dispute to the appellant and handed over its possession to him. On coming to know of this sale the !st respondent Association made an application claiming a right of transfer under section 24 of the West Bengal Non-Agricultural Tenancy Act, XX of 1949 on the ground, that it was the immediate landlord in .relation to that land that the land in question was contiguous to its other lands and that it required it for the purpose of extension of the school conducted by it. .

The Trial Court dismissed the application holding that the land in dispute was not contiguous to the land in possession of the 1st respondent Association. It however held that it was satisfied that the !st respondent Association required the said land bona fide for the purpose of expanding its school. In an appeal against this order by the !st respondent Association the Additional District Judge set aside the finding of the Trial Court holding that the land

SUPRFME

COIJRT REPORrS

(1967) 2 S.C.R.

in dispute was adjacent to the other land in possession of the 1st respondent Association. But he held that the I st respondent Association was an "intermediary" within the meaning of section 2(a) of the West Bengal Estates Acquisition Act, I of 1954 that therefore its interests vested in the State of West Bengal o~ the extension of the Act to Chandernagore after its merger in the State of West Bengal and consequently respondent No. I had no right to claim transfer and dismissed the appeal. The !st respondent Association thereupon filed a revision application in the High Court under section 116 of the Code of Civil Procedure and Art. 227 of the Constitution.

Three contenti9ns were raised before the High Court on behalf of the present appellant: (I) that the first respondent Association was an "intermediary" within the meaning of s. 2( I ){i) of the West Bengal Estates Acquisition Act and therefore all its rights vested under that Act in the State of West Bengal; (2) that section 24 of the Non-Agricultural Tenancy Act did not apply as (a) the land in dispute was not contiguous, (b) that under proviso (b) to that section it must be established to the satisfaction of the Court that sucb land was required for any of the purposes specified in section 4 and that the courts below had not given any finding as to their satisfaction and (3) that section 24 did not apply to a case where an under-tenant transferred his rights to a third party as the section applied only to a transfer by a tenant. The High Court repelled all the three contentions and allowed the revision setting aside the order of dismissal passed by the Trial Court and confirmed by the Additional District Judge.

Before us, Mr. Mukherjee besides reagitating the aforesaid three contentions also raised a constitutional point as to the invalidity of section 24 on the ground that it constituted an unreasonable restriction on the right of the appellant and respondents 2 and 3 to hold property.

Section 2(3) of the West Bengal Non-Agricultural Tenancy Act, defines a "landlord" to mean a person immediately under whom a non-agricultural tenant holds. Sub-section 5 of that section defines a "non-agricultural tenant" as a person who holds non-agricultural land under another person and is, or but for a special contract would be, liable to pay rent to such person for that land. Section 3 provides that for the purposes of this Act there would be two classes of non-agricultural tenants, namely, (a) tenants and (b) undertenants. Sub-section 2 of section 3 defines a "tenant" as meaning a person who has acquired from a proprietor or a tenure-holder a right to hold non-agricultural land for any of the purposes provided in the Act and includes also the successors-in-interest of persons who have acquired such a right. Sub-section 3 defines an "under-tenant" as meaning a person who has acquired a right to hold non-agri-

F •

SH!BSANKAR v. PRABARTAK (She/at, /.) 56!

cultural land either immediately or mediately under a tenant and includes also the successors-in-interest of persons who have acquired such a right. Section 4 provides that a non-agricultural tenant may hold non-agricultural land for (a) homestead or residential purposes,

(b) manufacturing or business purposes or (c) other purposes, Section 7 deals with incidents of non-agricultural tenancy and provides that if any non-agricultural land has been held with or without any lease having been entered into by the landlord and the tenant froin before the commencement of the Transfer of Property Act or if such land comprised in any tenancy created after the commencetnent of that Act has been held for a term of not less than twelve years without a lease in writing or if such land has been held for not Jess than twelve years under a lease in writing but no period is specified therein or if such land held under a lease in writing for a specified period continues to be held with the express or implied consent of the landlord after the expiry of such period and the total period for which such land is so held is not Jess than twelve years or if the landlord has allowed pucca structures to be erected on any non-agricultural land held under a lease in writing for a specified period whether such structures have been erected before the expiry of the said period or where such land continues to be held with the express or implied consent of the landlord after the expiration of the said period, during the period such land so continues to be held, then the tenant holding such land shall not be evicted by his landlord except on the ground that he has used such land in a manner which renders it unfit for use for the purpose of the tenancy. The section further provides that the interests of such a tenant in the land comprised in such tenancy are both heritable and capable of being transferred and bequeathed in the same manner as the other immovable property of such tenant. Section 23 provides that a transfer of non-agricultural tenancy or of any portion or share thereof shall be made by a registered instrument but the Registering Officer is not to accept for registration any such instrument unless the sale price, or where there is no sale price its value is stated therein and unless it is accompanied by a notice of such transfer on the landlord who is not a party to the transfer. Section 24 runs as follows:-

"If the entire non-agricultural land in a non-agricultural tenancy is transferred, the immediate landlord ...... may, . within four months of the service of notice issued under section 23, apply to the court for such land .... to be transferred to himself ...... .

Provided that-

(a) .............•....

(b) the immediate landlord of the non-agricultural tenant shall not have any right to purchase ..... .

SUPREME COU..T REPORTS

(1967] 2 S.C.R.

unless the non-agricultural land ...... so transferred is contiguous to any land in the actual possession of the landlord and the court is satisfied that such land .... is required for use by such landlord for any of the purposes specified in section 4.

In view of the clear finding by the Additional District Judge it can no longer be disputed that the land in question is contiguous to the land in actual possession of the 1st respondent Association.

There is also no reason why the finding or the High Court that the land is bo11a fide required by the 1st respondent Association for expansion or its educational institution should be disturbed. The Trial Court held that it was bo11a fide required by the 1st respondent and though the Additional District Judge did not expressly give any finding it appears as the High Court has stated that that fact was not challenged before him.

The proviso to section 24 however requires that though such land may be needed bona fide the use for which it is needed must be for any or the purposes set out in section 4.

Since the land is not required for a hostel or residential purpose of the I st respondent or its employees it cannot fall under clause (a) but the case would seem to fall under clause (b) and in any event under clause (c).

As aforesaid, the objects of the 1st respondent are inter alia to promote education, arts etc., by utilising, improving and developing properties and business. Since the case of the !st respondent is that it requires the land in question for expansion of its educational activities, the land in dispute is required for its business purposes,

vi=., to develop, improve its properties or in any event for the "other purposes," viz., to carry out its educational objects for which the land in its actual possession is being utilised.

There is therefore no difficulty in holding that clause (b) of the proviso is satisfied.

The next question is whether section 24 of the Act applies to the case of a transfer to a third party by the under-tenant.

Section 24 lays down that if non-agricultural land in a non-agricultural tenancy is transferred the immediate landlord may within the prescribed period apply for such land to be transferred to him.

Counsel argued that section 24 would apply only to a case or transfer by a tenant and therefore respondents 2 and 3 being the undertenants a transfer by them in favour of the appellant did not attract its provisions. The contention is erroneous, for it docs not take into account the special definition of a non-agricultural tenant in section 3. That section is contained in Chapter II which is headed "'Classes of Non-Agricultural Tenants." The section clearly provides that there are two classes of non-agricultural tenants:

(a) tenants and ( b) under-tenants and though sub-sections 2 and 3 define a tenant and an under-tenant both the categories are tenants for the purposes of the Act. Therefore respondents 2 and 3 though ounder-tcnants must be regarded tenants of the 1st respondent

SHIBSANKAR v. PRAB1''RTAK (She/at, /.) 563

Association for the purposes of the Act. Consequently, when respondents 2 and 3 effected transfer of their rights in the land in dispute in favour of the appellant they were bound to give notice thereof to the 1st respondent and on such transfer being made the 1st respondent was entitled to apply for the land to be transferred to it. It is true that by reason of the perpetual lease in favour of respondents 2 and 3 in respect of the land in dispute the first respondent Association had only the right of receiving rent from them but that makes no difference to the position that the first respondent was the immediate landlord of respondents 2 and 3 in regard to the land in question. Therefore there can be no doubt that both section 23 and section 24 were attracted to the transfer made by respondents 2 and 3 and under section 24 the first rpondent as their immediate landlord became entitled to apply for transfer.

Counsel however contended that the first respondent having merely the right to receive rent, it was an "intermediary" within the meaning of Act 1 of 1954, that under that Act the interests of such an intermediary vested in the State on the extension of that Act to Chandernagore and therefore the Association had no locusstandi to apply for transfer. This contention also cannot be accepted, for, an "intermediary" as defined in s. 2(1 )(i) of that Act means "a proprietor, tenure-holder, under-tenure holder, or any other intermediary above a raiyit or a non-agricultural tenant and in relation to mines and minerals, a lessee or a sub-lessee" ...... It is thus obvious that the 1st respondent being itself a non-agricultural tenant in respect of the entire land including the land in dispute it does not fall within this definition. Not being thus an intermediary it is impossible to say that its interests in the land in dispute vested in the State m .hat therefore it was not entitled to apply under section 24.

Mr. Mukherjee then raised a further contention which though not argued in the High Court we allowed him to urge, as it was purely a question as to the constitutional validity of section 24. The contention was that the right of transfer enacted in that section was founded solely on the consideration of vicinage and therefore constituted an unreasonable restriction on the guaranteed right of respondents 2 and 3 and the appellant under Art. 19(1)(f) of the Constitution. In this connection he relied upon Bhau Ram v.

Baijnath Singh(') where by a majority judgment this Court struck down section 10 of the Rewa State Pre-emption Act, 1946. That section provided for pre-emption on the ground of vicinage and it was held that such a restriction on the right of the vendor to sell his property to a purchaser of his choice at a price settled between them was unreasonable. It was observed that besides there being no advantage to the general public from such a law, the real reason

(!} [1962] Supp. 3 S. C.R. 724.

M2Sup. Cl/67-7

SUPREME COURT REPORTS

[1967] 2 S.C.R.

behind a l~ w of pre-emption ?n the basis of vicinage was to prevent strangers, ':e:, people belonging to different religion, race or caste, from acqumng property in any area populated by a particular fraternity or class. of people. Such a proviso could not be considered . reasonable m view of the prohibition under Art. 15 of the Cons!ltution of discrimination only on the ground of religion, race, caste, etc.

It may however be observed that the Court in that decision considered certain provisions of the Punjab Pre-emption Act, 1913 and Berar Land Revenue Code, 1928 also and refused to strike down certain provisions of those Acts where apart from vicinage there were other factors on the consideration of which the right of pre-emption was enacted. The decision therefore is an authority only for the proposition that where such a

rtriction . is laid down exclusively on the ground of vicinage it might be hable to be struck down as an unreasont1ble restriction.

This is illustrated by Ram Sarup v. Munshi(') where section 15(a) of the Punjab Pre-emption Act, 1913 , as amended by Act 10 of 1960 was held valid on the ground that the restriction on the right of free allienation imposed by that provision was intended to preserve the integrity of the village and the village community and to implement the agnatic rule of succession and that both of them were reasonable and calculated to further the interests of the general public.

An examination of the different provisions of the Act and its scheme shows that contiguity is not the sole consideration for which section 24 was enacted. Chapter III of the Act deals with tenants and confers on them diverse rights. Section 6 pennits a tenant holding non-agricultural land to erect pucca structures, to dig a tank and to fell, utilise or dispose of the timber of any tree planted by such a tenant. Under section 7 if the tenancy was created before the commencement of the Transfer of Property Act or its origin is unknown or if created after the commencement of that Act but the land is held thereunder for a period of 12 years or more or where the tenancy is for a shorter term but the tenant has continued to hold the land with the express or implied consent of the landlord and the period in the aggregate is not less than. twelve years such a tenant cannot be ejected except only on the solitary ground that he has used such land in a manner which renders it unfit for use for the purposes of the tenancy. Under that section the interests of such a tenant are made heritable and are capable of being transferred or bequeathed in the same manner and to the extent as the other immovable property of the tenant. Where any no agricultural land is held under a lease in writing for a period of not less than 12 years, section 8 confers on the tenant on the expiry of such period the option of successive renewals of such lease on fair and reasonable conditions as to rent as may be agreed upon between the parties or decided by the court in the absence of such agreement.

(I) [1963] 3 S. C.R. 858.

SHIBSANKAR v. PRABARTAK (She/at, J.) 565

It further provides that such a tenant cannot be ejected either during the term provided by the lease or during its renewal except on the solitary ground that he has used such land in a manner which renders it unfit for use for the purposes of such tenancy. Chapter IV of the Act in like manner confers substantial rights on under-tenants.

It is only when a non-agricultural tenant transfers his rights in the leased land to a third party that the provisions of sections 23 and 24 are attracted and in such an eventuality the immediate landlord who has interest in such land and has contiguous land in his actual possession is given the right to apply for the transfer of such land in his favour provided the court is satisfied that such land is required for any of the purposes set out in section 4. The scheme of the Act clearly is to afford security of tenure to tenants and undertenants even to the extent of making their rights transferable and heritable. It is only when such land is sought to be transferred that the immediate landlord is given the right to have it transferred to himself instead of to a third party. These provisions clearly reflect the true object of the legislature in enacting section 24. That object is to have an adjustment of rights of landlords and tenants.

The consideration of the land being contiguous is therefore not the sole consideration as in the case of Bhau Ram v. B. Baijnarh Singh.(') The restriction contained in section 24 cannot by any means be treated as an unreasonable restriction. Consequently the contention as to the constitutional invalidity of section 24 cannot be accepted.

The appeal is dismissed with costs.

G.C.

Appeal dismissed.

(I) (1962) Supp. 3 S.C.ll. 724.

SIDBSANKAR NANDY

PRABARTAK SANGHA AND ORS

February l, 1967

K. SUBBA RAO, C.J.

C. SHAH, J

M. SHELAT

V. BHARGAVA

G. K. MITTER, JJ

Art. 19(1)(/)

s. 24

s. 24

s. 24

s. 19( 1 J ( f)

West Bengal

s. 4

s. 24

s. 24

s. 24

(1963] 3 S.C.R. 858

s. 2(1 )(i)

APPELLATE JuRISDICTIOS

Calcutta High Court

D. N. Mukherjee

Dhurba Kumar Mukherjee

Sukumar Ghose

Shelat

Chandernagore

Societies Registration Act

clause 3(s)

March 23, 1941

Kashinath Seal

September 29, 1944

Motilal Roy

March 14, 1953

section 24

section 2(a)

State of West Bengal

section 116

the Code of Civil Procedure

Art. 227

s. 2( I )

section 24

section 4

section 24

Mukherjee

section 24

Section 2(3)

section 5

Section 3

section 2

section 3

section 3

Section 4

Section 7

Transfer of Property Act

Section 23

Section 24

section 23

section 4

section 24

section 4

section 24

Section 24

section 24

section 3

sections 2 and 3

section 23

section 24

section 24

s. 2(1 )(i)

section 24

section 24

Art. 19(1)(f)

section 10

Rewa State Pre-emption Act, 1946

Art. 15

Berar Land Revenue Code, 1928

section 15(a)

Punjab Pre-emption Act, 1913

section 24

Chapter III of the Act

Section 6

section 7

Transfer of Property Act

section 8

[1963] 3 S. C.R. 858

Chapter IV of the Act

sections 23 and 24

section 4

section 24

section 24

section 24


S. GOVINDA MENON

THE UNION OF INDIA & ANR.

February 2, 1967

(K. N. WANCHOO AND V. llAMAsWAMI, JJ.]

All India Services (Discipline and Appeal Rules), 1955-rr 4(1) 5(2) 7(1). . ' •

Madras Ilindu Religious and Charitable Endowments Act XIX of 1951, SS. 20, 29, 80, 81, 99, 100(2)(nr).

Government servant acting in capacity of 'Corporation sole'-Allegations of misconduct in discharge of rluries-Whetlrer disciplinary proceed- 1nRs can be taken against liifn under r. 4( 1 )--Or wlzethi!r his decisions can only be questioned in appeal or revisiori-Wl~!tlier suspension under r. 7(1) can be ordered only after framing of charges under r. 5(2)-Whether leases for over five years requir11d to be b_y pllblic auction-Whether Com. missio., er can himself initiate proposals of leases.

While the appellant, who was a member of tho Indian Administrath-e Service and the First Member of the Board of Revenue, Kerala State, was holding the post of Commissioner of Hindu Religious ond Charitable Endowments, certain complaints were made against him relating to the grant of cenain leases. The State Government instituted disciplinary proceedings

ainst him and placed him under 'uspension under Rule 7 of the All India Services (Discipline and Appea1') Rules, 1955.

An Enquiry Officer \\'as thereafter appointed under Ruic 5 to investigate the charges.

The appellant filed a petition for the grant of a writ of certiorari to quash the proceedings initialed against him and for a writ of n1andamus calling upon the Stale Government lo pennit him lo function as the First Member of the Board of Revenue.

In the meantime, the Enquiry Officer having sul>- mitted a report to the Union Government finding the appellant guilty of some of the charges. a how cau"e notice was issued to him. At this stage the appellant applied for and obtained an amendment of his writ petition and by the amended petition sought a writ of prohibition re.straining the Union Government from proceeding further u00n and for quashing the show cause notice. The writ pe1ition was dismissed by the High Court.

In <!, ppeal to this Court, it wac; cont-ended. inter alia for the appellant (I) that in view of s. 80 of adras Act XIX of 1951 which provides that the Commissioner shall be a Corporation sole, a person acting in the caoacitv of a Commissioner is not a Government servant and there "as 1herefore no jurisdiction to take disciplinary proceedings against him under Rule 4( I); (ii) that the Commissioner wa.• exercising a quasijudiciat function in sanctioning teases under the Act which were the subjectmaller of the complaint< against him : his orders could therefore onlv he questioned in appeal as provided under s. 29(4) of the Act or examined by the Government in revisiott under s. 99 and not by the executive Government through disciplinary proceedins; (iii) that the main charge against

the appellant was not sustainahle : there wao;; nothing improper in hi~ having sanctioned leases for over five_ years without auction or in his havin{! initialed proposals for leases in favour of specified individuals; (iv) that the proceedings under Ruic 4(1) "''ere invalid as there was n() forml order

instituting these proceedings; and (v) that the appellant could not be suspended until after charges had been framed against him.

HELD : No case had been made out for the grant of a writ of prohibition under Art. 226.

The King v. North (1927] I K.B. 491; Regina v. Comptroller.General of Patents and Designs [1953] 2 W.L.R. 760, 765; Parisienne Basket Shoes

proprietary Ltd. v. Wl\vte 59 C.L.R. 369, referred to.

(i) Even if the appellant was not subject to the administrative control of the Government when be was functioning as Commissioner, his act or omission as Commissioner could form the subject-matter of diseiplinary proceedings under Rule 4(1) provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a n1ember of the Service. [574 BJ

Pearce v. Foster l 7 Q.B.D. 536, 542; referred to.

There was no force in the contention that the Commissioner has a separate legal personaJity as corporation sole and is therefore exempt from disciplinary proceedings. [575 F]

(ii) The allegations against the appellant were to the effect that in exercising his powers as Commissioner, he acted in abuse of his powers and it was in regard to such misconduct that he was being proceeded against.

Therefore, although the propriety and legality of the sanction to the leases may be questioned in appeal or revision under the Act, the Government was not precluded from taking disciplinary action for misconduct if this was called for. [577 HJ

(iii) The contention that the main charge against the appellant was not sustainable must be rejected.

The Commissioner has no authority to sanction any leases without auction.

Rule 1 requiring public auction framed under s. 100(2) (m) covers all leases and there is no exception in respect of leases exceeding 5 years falling within the scope of s. 29( l).

Furthermore, the Commisioner has no power under s. 20 to initiate specific proposals for lease -0f the trust properties [579 A-CJ

(iv) The contents of the order instituting disciplinary proceedings under Rule 4(1) showed that the Government had accepted the proceedings taken up to then and decided to go forward with the disciplinary proceed ings. There was therefore no formal order necessarv to initiate disciplinary proceedings under Rule 4( 1) of the Rules and the order passed by the State Government must be deemed to be an order under Rule I of the Rules ini'iating disciplinary proceedings, [580 F; 581 E, F]

(v) It cannot be said that the suspension of the appellant under Rule 7 could only be ordered after charges had been framed against him in accordance with Rule 5(2). The framing of the charges unler Rule 5(2) is necessary to enable the member of the service to meet the case against him-whereas under s. 7 ( 1) the Government may place him under suspension if satisfied that this is necessary having regard to the nature of the charges and the circumstances of the case.

The word "charges" in Rule 7(1) should be given a wider meaning as denoting the accusations or imputations again•! the member of the Service. [582 DFJ

. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1366 of 1966.

568 SUPREME comr llEPOJlTS [1967] 2 s.c.R.

Appeal from the judgment and order dated January 5, 1966 of the Kcrala High Court in Original Petition No. l of 1964. The appellant appeared in person.

N. N. Bi11dra and R. 11. Dhebar, for respondent No. I.

Sarjoo Prasad, N. N. Venkltacha/am, A. G. Pud/ssery and M. R. K. Pillai, for respondent No. 2.

The Judgment of the Court was delivered by

Ramaswaml, J, This appeal is brought, by certificate, against the judgment of the High Court of Kerala dated January 5, 1966 dismissing Original Petition No. l of 1964 filed by the appellant.

The appellant, Sri S. Govinda Menon is a member of the Indian Administrative Service. He was the First Member of the Board of Revenue, Kerala State and was holding the post of Commissioner of Hindu Religious and Charitable Endowments. On the basis of certain petitions containing allegations of misconduct against the appellant in the discharge of his duties as Commissioner the Kerala Government instituted certain preliminary enquiries and thereafter started disciplinary proceedings against the appellant and also placed him under suspension under rule 7 of the All India Services (Discipline and Appeal) Rules, 1955, hereinafter called the 'Rules'.

A copy of tho charges together with a statement of certain allegations was served on the appellant who thereafter filed a written statement of defence. After perusing the written statement the Government passed orders that his explanation was unacceptable and that the charges should be enquired into by an Enquiry Officer to be appoin tcd under rule 5 of the Rulc.s. Accordingly Sri T. N. S. Raghavan a retired I.C.S. Officer was appointed to hold tho inquiry. The appellant then filed the present wnt petition before the High Court of Kerala praying for grant of a writ of certiorari to quash the proceedings initiated against him and for a writ of mandamus calling upon respondent No. 2, State of Kcrala, to allow him to function as tho

First Member of the Board of Revenue, As no application for stay was made and as no order of star wus passed. by the High Court Sri T. N. S. Raghavan proceeded with the inquiry and submitted his report to the Union Oovornment finding the appellant guilty of chargos 1 to 4 and 9, The Union of India, after consideration of tho report, Issued a 'Show Cause Notice' Ex. P9. The appellant thoroaf'tor filed an appllcatlon boforo the High Court for amendment of the writ petition. Tho prayer in this amended petition was for tho issue of a writ of prohibition restraining the first respondont- Unlon of India-from proceeding further in pursuance of the 'Show Cause Notice' and also for quashing the same. Tho appllcatlon for amendment was allowed by the High Court, The main contention of tho appellant was that the proceedings lnith1ted against him were entirely without jurisdiction as no disciplinary proceedings could ho

GOVINDA MENON v. UNION (Rama.rwami, I.) 569

taken against him for acts and omissions with regard to his work as Commissioner under the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951), hereinafter called the 'Act' and that the orders made by him being of quasi-judicial character can be impugned only in appropriate proceedings taken under that Act. After hearing the arguments advanced on both sides, Mathew, J. rejected the objections raised by the appellant regarding want of jurisdiction and held that the respondents had power to proceed with the inquiry into the charges.

S. Velu Pillai, J. on the other hand, took the view that quasi judicial decisions became final and conclusive if they were not set aside or modified in the manner prescribed by the statute and if the decisions are not so challenged, their correctness or legality must be taken to be conclusive, and such quasi judicial decisions cannot form the subject-matter of charges in disciplinary proceedings against the appellant. Velu Pillai, J, held that the Union Government had therefore no jurisdiction to proceed with the inquiry on the first part of charge I, charge 2, the first part of charge 3 and charge 4, but the Union Government had jurisdiction to proceed with the inquiry with regard to the second part of charge No. I, the second part of charge No. 3 and charge No. 9. In view of this difference of opinion the matter was placed before Govinda Menon, J. who agreed with the view taken by Mathew, J. and in the result the writ petition of the appellant was dismissed.

It is necessary at this stage to set out the charges levelled against the appellant. Charges I to 4 relate mainly to the conduct of the appellant in sanctioning 30 leases regarding the private forest lands of 5 Devaswoms and charge No. 9 concerns the refusal by the appcl !ant to attend a conference convened by the Chief Secretary to consider certain important matters connected with the national emergency, ln 17 of the leases relating to the first charge the period of the lease is 36 years. In one case the period is 96 years and in the rest of the leases the period of lease Is 99 years. The total area covered by all the leases comes to over S0,000 acres. ChArges I to 4 and 9 read as follows:

"1. That you, Shri S.

Govinda Menon, I.A.S., while employed in tho Government Service 11s member, Board of Revenue and Commissioner, H. R. & c. E. (Administration) Department from l-2·1957 to 19·10·1962 issued sanctions granting leases of extensive and valuable forest lands belonging to the Devaswoms under your control as Commluloncr such as (I) Pulpal!y Oevaswom, (2) Kallalkulangara Emoor Bbagavathl Temple, (3) Nadivllla Vallathu Deva1wom, (4) Kottlyor Devaswom, (S)Mundayan paramba Dcvaawom etc., In utter .. d. lsrcga. rd of.the provis lon ... ' m the Madras Hindu Religious and Charitable Endowment Act, 1951 and the rules issued thereunder. In 11evcral cases

you had yourself initiated the proposals for leases which should have been made by the trustee and acted in judgment on them by sanctioning the leases.

In many cases of the leases aforesaid and otherwise generally in regard to the control and supervision exercised by you over the administration of endowments, your conduct has been such as to render you unfit for the performance of your statutory duties under the Yladras Hindu Religious and Charitable Endowments Act or as a responsible Officer of the Government.

2. That you had fixed the premium for lease, the rental and the timber value arbitrarily disregarding whether they were beneficial to the institutions as you were required to do under the Act and you thereby caused wrongful gain to the lessees and wrongful loss to the Devaswoms.

3. That you not only initiated proposals for the leases and sanctioned them yourself, but also took further action for putting the lessees in possession of the lands and to fell the trees thereon for which you had no authority under the Act and the Rules.

In particular you attempted to influence the Collector of Kozhikode, the statutory authority for the sanctioning of leases of private forests under the M. P. P. F. Act by causing your Personal Assistant to write to the Personal Assistant to the Collector thereby bringing the weight of your Official position as his official superior in your capacity as 1st Member, Board of Revenue to bear uron him and influence the Collector in the performance of his statutory duty.

4. That you sanctioned the lease .of extensive forest lands with valuable tree-growth belonging to various Devaswoms to your relations, neighbours and friends contrary to the provision in Rule 3 of the All India Services (Conduct) Rules 1954, which , enjoins every member of the service to maintain absolute integrity in all official matters.

9. That on 29-10-1962 you refused to attend a conferrence of the Members of the Board of Revenue and the Inspector General of Police which was called together by the Chief Secretary in the Secretariat to discuss important matters connected with the national emergency and was thereby guilty of gross dereliction of duty and of discourtesy to the Chief Secretary."

Section 20 of the Act provides that the administration of all religious endowments shall be subject to the general superintendence and control of the Commissioner; and that such superintendence and control shall include the power to pass any orders which may be deemed necessary for the proper administration of

the endowments. Section 29 of the Act states that any sale, exchange or mortgage and any lease for a term exceeding five years of any immovable property belonging to any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution, and the Commissioner shall, before according sanction, publish particulars of the proposed transaction, invite objections and consider them.

Sub-section (3) provides for communicating a copy of the order granting sanction, to the Government and to the trustee. Su b-scction ( 4) provides for an appeal against the order of the Commissioner to the Government by the trustee or any person having interest. Section 99(1) states:

"99. (1) The Government may call for and examine the record of the Commissioner or any Deputy or Assistant Commissioner, of any Area Committee or of any trustee in respect of any proceeding, not being a proceeding in respect of which a suit or an appeal to a Court is provided by this Act, to satisfy themselves as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein; and, if, in any case, it appears to the Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly:

Provided that the Government shall not pass any order prejudicial to any party unless he has had a reasonable opportunity of making his representations."

The jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine courts or tribunals of inferior or limited jurisdiction within their bounds.

It is well-settled that the writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but the writ also lies in a case of departure from the rules of natural justice (See Halsbury's Laws of England, 3rd Edn., Vol. 11, p. 114). It was held for instance by the Court of Appeal in The King v. North(') that as the order of the judge of the consistory court of July 24, 1925 was made without giving the vicar an opportunity of being heard in his defence, the order was made in violation of the principles of natural justice and was therefore an order made without jurisdiction and the writ of prohibition ought to issue. But the writ does not lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings. It is also well-establishedthat a writ of prohibition cannot be issued to a court or an inferior tribunal for an error of law unless the error makes it go outside its

(I) (1927] I K.B. 411.

jurisdiction (See Regina v. Comptroller-General of Patents lllld

Designs,(') and Parisienne Basket Shoes Proprietary Ltd. v. Whyte(2).

A clear distinction must therefore be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction then the matter is coram non judice and a writ of prohibition will lie to the court or inferior tribunal forbidding it to continue proceedings therein in excess of its jurisdiction.

The first proposition put forward by the appell<1nt is that the Commissioner is a corporation sole and not a servant of the Government and against a person acting in the capacity of a Commissioner the Government have no jurisdiction to take disciplinary proceedings. Reference was made to s. 80 of the Act which states that "the Commissioner shall be a corporation sole and shall have perpetual succession and a common seal and may sue and be sued in his corporate name." It was argued that the acts and omissions. of the> appellant in his capacity as Commissioner cannot be questioned in any disciplinary proceedings as the Commissioner is not a servant of the Government subject to its administrative control. Before examining this proposition it is necessary to consider rule 4 of the Rules which states:

"4. Authority to institute proceedings and to impose penalty.-

( 1) Where a member of the Service has committed any act or omission which renders him liable to any penalty specified in rule 3,-

(a} if such act or omission was committed before his appointment to the service, the Government under whom he is for the time being serving shall alone be competent to institute disciplinary proceedings against him and, subject to the provisions of sub-rule (2), to impose on him such penalty specified in rule 3 as it thinks fit.

(b) if such act or omission was committed after his appointment to the Service. the Government under whom such member was serving at the time of the commission of such act or omission shall alone be competent to institute disciplinary proceedings against him and subject to the provisions of sub-rule (2), to impose on him such penalty specified in rule 3 as it thinks fit and the Government under whom he is serving at the time of the institution of such proceedings shall be bound to render all reasonable facilities to the Government instituting and conducting such proceedings.

(l) (t953J 2 W.L.R. 760, 765.

(2) 59 C.L.R. 369.

I I

(2) The penalty of dismissal, removal or compulsory

retirement shall not be imposed on a member of the Service except by an order of the Central Government. . . . . .,, It is. not disputed that the appropriate Government has power to take disciplinary proceedings against the appellant and that he could be removed from service by an order of the Central Government, but it was contended that I.A.S. Officers are governed by statutory rules, that 'any act or omission' referred to in rule 4(1) relates only to an act or omission of an officer when serving under the Government, and that "serving under the Government" means subject to the administrative control of the Government and that disciplinary proceedings should be, therefore, on the basis of the relationship of master and servant. It was argued that in exercising statutory powers the Commissioner was not subject to the administrative control of the Government and disciplinary proceedings cannot, therefore, be instituted against the appellant in respect of an act or omission committed by him in the course of his employment as Commissioner. We are unable to accept the proposition contended for by the appellant as correct.

Rule 4(1) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted. Rule 4(l)(b) merely says that the appropriate Government competent to institute disciplinary proceedings against a member of the Service would be the Government under whom such member was serving at the time of the commission of such act or omission. It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a Government servant. It is therefore open to the Government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the Service. It is not disputed that the appellant was, at the time of the alleged misconduct, employed as the First Member of the Board of Revenue and he was at the same time performing the duties of Commissioner under the Act in addition to his duties as the First Member of the Board of Revenue. In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or derntion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is nb actual master and servant relationship. To put it differently, the test is not whether the act or omission was commitied by the appellant in the course of the discharge of his

duties as servant of the Government; The test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any refletion upon the reputation of the member of the Service for integrity or devotion to duty as a public servant. We are of the opinion that even if the appellant was not subject to the adminis trative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Govern ment subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary pro ccedings provided the act or omission would reflect upon his repu talion for integrity or devotion to duty as a member of the Service.

In this context reference may be made to the following observations -0f Lopes, L. J. in Pearce v. Foster(') :

"If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant."

It was also contended by the appellant in this connection that as the Commissioner was made a Corporation sole under s. 80 of the Act as a separate and independent personality, he was not subject to the ccntrol of the Government and no disciplinary proceedings could be initiated against him.

We do not think there is any sub stance in this argument.

It is true that the Commissioner has been made a Corporation sole under s. 80 of the Act which states tha! the Commissioner shall have perpetual succession and a common seal and may sue and be sued in his corporate name.

Section 81(1) of the Act provides for the establishment of a Fund called 'The Madras Hindu Religious and Charitable Endowments Administra tion Fund' and further states that the Fund shall vest in the Commissioner. It was argued for the appellant that the corporate entity created by s. 80 of the Act has a separate legal personality.

But there is a juristic distinction between a Corporation sole and a Corporation aggregate and the Corporation sole is not endowed with a separate legal personality as the Corporation aggregate. As Maitland said:

"If our corporation sole really were an artificial person created by the policy of man we ought to marvel at its incompetence.

Unless custom or statute aids it, it cannot

(I} 17 Q.B.D. S36, S42.

' ...

_j H

(so we are told) own a chattel, not even a chattel real.

A different and an eqnally inelegant device was adopted to provide an owning 'subject' for the ornaments of the church and the minister thereof-adopted at the end of the Middle Ages by lawyers who held themselves debarred by the theory of corporations from frankly saying that the body of parishioners is a corporation aggregate. And then we are also told that in all probability a corporation sole 'cannot enter into a contract except with statutory authority or as incidental to an interest in land ....................... .'

............ Be that as it may, the ecclesiastical corporation sole is no juristic person'; he or it is either natural man or juristic abortion." (See 'Selected Essays of Maitland' pp. JOO & 103).

Keeton has also observed as follows :

"It was a device for transmitting real property to a succession of persons without the necessity for periodic conveyances. It was never intended that this device should be erected into a psychological person with a developed existence of its own ................ In dealing with a corporation sole, the courts have never treated it as a conception similar in essential characteristics to a corporation aggregate. They have restricted its utility to the transmission of real, or exceptionally, by custom, as in Byrd v. Wilford, and now by statute, personal property from one holder of an office, lay or ecclesiastical, to his successor" .-(See 'Elementary Principles of Jurisprudence' by Keeton, 2nd Edn. pp. 155 & 162)." We accordingly reject the contention of the appellant that the Commissioner has a separate legal personality as corporation sole under s. 80 of the Act and that he is exempt from disciplinary proceedings for any act or omission committed in his capacity as Commissioner. In our opinion, the object of the legislature in enacting ss. 80 and 81 of the Act was to constitute a separate Fund and to provide for the vesting of that Fund in the Commissioner as a corporation sole and thereby avoid the necessity of periodic conveyances in the transmission of title to that Fund.

We next proceed to examine the contention of the appellant that the Commissioner was exercising a quasi-judicial function in sanctioning the leases under the Act and his orders cannot therefore be questioned except in accordance with the provisions of the Act.

The proposition put forward was that quasi-judicial orders, unless vacated under the provisions of the Act are final and binding and cannot be questioned by the executive Government through disciplinary proceedings. It was argued that an appeal is provided under s. 29(4) of the Act against the order of the Commissioner granting

sanction to a lease and that it is open to any party aggrieved to file A such an appeal and question the legality or correctness of the order of the Commissioner and that the Government also may in revision under s. 99 of the Act examine the correctness or legality of the order.

It was said that so long as these methods were not adopted the Government could not institute disciplinary proceedings and re-examine the legality of the order of the Commissioner granting B sanction to the leases.

The first part of charge No. 1 was that the appellant in utter disregard of the provisions of the Act and the Rules made thereunder, passed orders sanctioning the leasl':; in the cases mentioned in the statement of allegations. The relevant portion of the allegation reads as follows:

"You were the Commissioner H. R. & C. E. (Admn.) Department from 1-2-1957 to 19-10-62. Under section 29 of the Madras Hindu Religious and Charitable Endowments Act of 1951, any exchange, sale or mortgage and any lease for a term exceeding 5 years of any immovable property belonging to or given or endowed for the purpose of any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. Under the proviso to the section, the particulars of the proposed transactions shall be published at least in one daily newspaper inviting objections and suggestions with respect to the proposals and the suggestions and objections, if any, received should be considered by the Commissioner before the sanction is accorded.

By the rules made under section 29, clauses (I) and (3) of the Act, notice of the proposals for a lease for a period exceeding five years of immovable property belonging to a religious institution shall contain particulars of the nature of the proposed transaction, the correct description of the properties and information regarding the survey number, extent and boundaries, the probable price or the rental as the case may be. The rules made under section 100(2) of the Act provide that all leases of lands, buildings, sites or other immovable properties and rights belonging to a religious institution shall be made by public auction. Leases otherwise than by public auction should not be resorted to except with the previous sanction of the Deputy Commissioner. It follows from the above that the proposals for leasing out the Devaswom lands have to be initiated by the Trustee or the 'Fit Person' and that such leases bave ordinarily to be granted only by auction. In exceptional cases, lands may be leased out by the trustee without auction subject to the previous sanction of the Deputy Commissioner. This provision does

. I

not, however, authorise the Commissioner, to dispose of lands without auction.

His duty is to give notice of the proposal which may be received from the trustee, to call for objections and suggestions and to accord sanction if he is satisfied that the transaction is beneficial to the Devaswom.

After the Commissioner accords sanction further steps for leasing out the lands have to be taken by the trustee who is the lessor and the proposed lessee. Contrary to the above provisions leases were sanctioned by you in the following cascs. 0

It is apparent that the first part of charge No. 1 read with the relevant allegations is that in utter disregard of the provisions of s. 29 of the Act and the Rules and without being satisfied that the leases were beneficial to the Devaswoms the appellant sanctioned them and this action of the appellant discloses misconduct, irregularity and gross recklessness in the discharge of his official duties. The charge is therefore one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions of s. 29 and the Rules thereunder in sanctioning the leases. On behalf of the respondents it was argued both by Mr. Sarjoo Prasad and Mr. Bindra that the Commissioner was not discharging quasi-judicial functions in sanctioning leases under s. 29 of the Act, but we shall proceed on the assumption that the Commissioner was performing quasi-judicial functions in granting leases under s. 29 of the Act. Even upon that assumption we are satisfied that the Government was entitled to institute disciplinary proceedings if there was prima facie material for showing recklessness or misconduct on the part of the appellant in the discharge of his official duty. It is true that if the provisions of s. 29 of the Act or the Rules are disregarded the order of the Commissioner is illegal and such an order could be questioned in appeal under s. 29(4) or in revision under s. 99 of the Act. Butin the present proceedings what is sought to be challenged is not the correctness or the legality of the decision of the Commissioner but the conduct of the appellant in the discharge of his duties as Commisioner. The appellant was proceeded against because in the discharge of his functions he acted in utter disregard of the provisions of the Act and the Rules. It is the manner in which he discharged his functions that is brought up in these proceedings. In other words, the charge and the allegations are to the effect that in exercising his powers as Commissioner the appellant acted in abuse of bis power and it was in regard to such misconduct that he is being proceeded against. It is manifest therefore that though the propriety and legality of the sanction to the leases may be questioned in appeal or revision under the Act, the Government is not precluded from taking disciplinary action if there is proof that the Commissioner had acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to

observe the prescribed conditions which are essential for the exercise of the statutory power. We sec no reason why the Government cannot do so for the purpose of showing that the Commissioner acted in utter disregard of the conditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence. We are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of the case.

We pass on to consider the next contention of the appellant that the first part of charge No. I is not sustainable because the only rule said to have been violated was the rule regarding auction. It was argued that the rule regarding auction did not apply to long-term leases falling within the scope of s. 29(1) of the Act and the first part of charge No. I was therefore not sustainable. We are unable to accept this argument as correct. The statement of allegations in respect of charge No. 1 sets out the provisions of s. 29 of the Act, the rules made under els. (1) & (3) of that section and the rules made under s. 100(2)(m) of the Act and it says that contrary to the above provisions leases were sanctioned.

Rule 1 of the Rules framed under s. lOO(Z)(m) of the Act reads as follows:

"All leases of lands, buildings, sites and other immovable properties and rights belonging to a religious institution shall be made by public auction held in the places in which the properties are situate or the rights ex.isl. The Deputy Commissioner may if he is satisfied that in any case the holding of an auction at a place other than the one in which the properties proposed to be leased are situated will not be detrimental to securing a proper bid, permit such auction, but no auction shall be held in a village situated in a district other than the one in which the property is situate."

It was argued on behalf of the respondents that all leases had to be made by public auction and the Commissioner had no authority to sanction any leases without auction and that the power to waive the public auction is given to the Deputy Commissioner and not to the Commissioner under rule 9.

In this connection reference was made by the appellant to rule 2(2) which provides that auction is to be conducted in the case of a lease for a period of one year or more within one month, and ill the case of a lease for a period of less than one year, within 15 days after the date of the trustee's decision regarding the period for which the lease should be given.

It was said that it would be impossible to conduct an auction in such a case within one month of the date of the trustee's decision because a minimum period of 30 days is prescribed between the notice and hearing of objections under s. 29.

It was said that some more time will necessarily have to be allowed for the trustees to send an

application after they decide the period of the lease and for the Commissioner to issue the notice himself and to communicate his sanction to the trustees. We do not think there is any substance in this argument because it is open to the trustee to hold the auction in the first place under Rule I even in the case of a lease for a period over 5 years and then send the proposal to the Commi:ssioner for sanction. We are accordingly of the opinion that Rule 1 made under s. 100(2)(m) of the Act providing for auction applies to leases for over 5 years under s. 29 of the Act and the Commissioner had therefore no authority for sanctioning any leases without auction under s. 29(1) of the Act. In other words, Rule 1 requiring public auction framed under s.100(2)(m) covers all leases and there is no exception in respect of leases exceeding 5 years falling within the scope of s. 29(1) of the Act. We accordingly reject the argument of the appellant on this aspect of the case.

As regards the second part of charge No. I, it was argued by the appellant that there was no prohibition in the Act for the Commissioner to himself initiate the proposal for leases and therefore the D charge cannot be sustained. The question for consideration is whether the Commissioner could initiate a proposal for lease in favour of a specified individual with all the terms and conditions.

It is not disputed by the appellant that the trustee is the proper person to initiate a proposal for lease of the trust properties, but it is argued that under s. 20 of the Act the Commissioner can make E specific proposals for leases and that he can himself sanction them under s. 29. The first part of s. 20 speaks of the general superintendence and control of the Commissioner over the administration of all religious endowments. The section goes on to state that such superintendence and control shall include the power to pass an order which may be necessary to ensure that such endowments are properly administered and their income is really appropriated for F the purpose for which they were founded.

In our opinion, the language of this section does not suggest that the. Commissioner himself is vested with the power to make specific proposals for leases of trust properties. Under s. 29 of the Act the Commissioner is given a specific power to accord sanction for any alienation and for leases for a term exceeding 5 years. That section implies that G the proposals for leases must originate from the trustees and not from the Commissioner himself and that the only function of the Commissioner is to accord sanction to such proposals. If the language of s. 20 is understood as suggesting that the Commissioner has power to initiate proposals it would mean that the Commissioner himself may sit in judgment over the proposals initiated by him.

H It cannot be supposed that the legislature contemplated such a consequence. In this context it is necessary to remember that under the general law the trustee is the person competent to make alienation or grant lease of Devaswom properties. It is true that the M2SupCI/67-8

580 SUPllBMB COUllT REPORTS

(1967) 2 S.C.R.

legislature has put a restriction on the power of alienation and the power of granting leases by s. 29 of the Act, but the statutory restriction on the power of the trustee should not be interpreted in such a way as to abrogate all his power in respect of alienation or lease.

We are accordingly of the opinion that the Commissioner has no power to initiate specific proposals for lease of the trust properties and the argument of the appellant on this point must be rejected

The third part of charge No. l is not a separate charge but could be enquired into along with other parts of charge No. l. As regards charges 2, 3 and 4 it is not shown on behalf of the appellant that there is any defect of jurisdiction and that the respondents cannot proceed with the inquiry.

The next question to be considered is whether the disciplinary proceedings against the appellant were validly instituted as required by Rule 4(l)(b) of the Rules.

It was submitted by the appellant that there was no formal order of the Government for instituting these proceedings. For the respondents it was contended that the question is barred by res judicata by reason of the decision of the Kcrala High Court in S. Govinda Menon v. State of Kerala.(').

In that case, the order of suspension was challenged by the appellant by a writ petition in 0. P. No. 485 of 1963 which was dismissed by Vaidialingam, J.

Against that decision the appellant preferred an appeal which was dismissed by the Division Bench.

It was contended by the appellant that the only issue considered in that case was whether the appellant could be suspended before the charges were framed and the rule of res judicata was not applicable. We shall assume in favour of the appellant that the question is not barred by res judicata. Even so, we arc of the opimon that there is no substance in the contention of the appellant that there was no valid institution of the disciplinary proceedings under rule 4( I). A perusal of the order of the Government, Ex.P-1 would itself indicate that disciplinary proceedings had been initiated against the appellant. Exhibit P-1 reads as follows:

"The Government have received severalpctitions containing serious allegations of official misconduct against Shri S. Govinda Menon, I.A.S. First Member, Board of Revenue, and formerly Commissioner, Hindu Religious and Charitable Endowments (Administration). Preliminary enquiries caused to be conducted into the allegations have shown prima facle, that the officer is guilty of corruption, nepotism and other irregularities of a grave nature. The Kerala High Court had also occasion to comment on the conduct of the officer in their judgment in 0. P. 2306/62 delivered on 12th February 1963. The judgment begins with the

(I) [1963] K.L.T. 1162.

OOV!NDA MENON v. UNIO"I (Ramaswami, J.) 581

A observation that 'this case, if it has served little else, has served to expose a disquieting state of affairs regarding the disposal of valuable forest lands belonging to a religious institution known as the Sree Pulpally Devaswom of which I trust due notice will be taken by the competent authority in the interests of the public administration and the preser- B vation of our forest wealth no less than in the interests of this particular institution'.

The judgment in the above case and the preliminary report of the X-Branch police have disclosed the following grave charges of seriou> irregularity and official miscon duct on the part of the accused officer.

The detailed enquiry into the charges by the X-Branch is in progress. The evidence in the case has to be collected from a large number of officers who are subordinate to the accused officer in his capacity as First Member of the Board of Revenue. In the interest of the proper conduct of the enquiry it is necessary that the officer should not be allowed to continue in that post. Having regard to the nature of the charges against the officer and the circumstances the proper course would be to place him under suspension. Shri S. Govinda Menon I.A.S. First Member Board of Revenue, is therefore placed under suspension under Rule 7 of the All India Services (Discipline and Appeal) Rules 1955 till the disciplinaryproceedingsinitiated against him are completed."

A perusid of this document shows that the Government had accepted the proceedings taken in the matter uptil that date and had decided to go forward with the disciplinary proceedings. In our opinion, there is no formal order necessary to initiate disciplinary proceedings under Rule 4(1) of the Rules and the order of the State Government under Ex. P-1 must be deemed to be an order under Rule 4(1) of the Rules initiating disciplinary proceedings.

It was lastly submitted that the order of suspension of the appellant dated March 8, 1963 is not in compliance with Rule 7 of the Rules which states:

"7.

Suspension during disciplinary proceedings :- (!) If having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started that Government may-

(a) if the member of the Service is serving under it pass an order placing him under suspension, or

" It was pointed out that definite charges 11ere framed on June 6, 1963 and the Government had no authority to suspend the appellant before the date of framing charges.

Reference was made to Rule 5(2) which states:

"5. (2) The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the member of the Service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case."

It was argued by the appellant that the word "charges" which occurs in Rule 5(2) and Rule 7 should be given the same meaning and no order of suspension could be passed under Rule 7 hcfore the charges are framed under Rule 5(2) against the appellant. We do not think there is any substance in this argument.

Ruic 5(2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges.

Under rule 5(3) a member of the Service is 'required to submit a written statement of his defence to the charge or charges. The framing of the charge under Rule 5(2) is necessary to enable the member of Service to meet the case against him. The language of rule 7(1) is however different and that rule provides that the Gn\'ernment may place a member of the Service under suspension "ha; ing regard to the nature of the charge/charges and the circumstances in any case" if the Government is satisfied that it is necessary to place him under suspension.

In view of the difference of language in Rule 5(2) and Rule 7 we are of the opinion that the word "charges" in rule 7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the Service. We accordingly reject the argument of the appellant on this aspect of the case.

For the reasons already expressed we hold that the appellant has made out no case for the grant of a writ of prohihirion under Art. 226 of the Constiution and the majority judgment of the High Court of Kerala dated January 5, 1966 is correct and this appeal mmt be dismissed. In the circumstances of the case we do not make any order as to costs.

R.K.P.S.

Appeal dismissed.

S. GOVINDA MENON

THE UNION OF INDIA & ANR

February 2, 1967

K. N. WANCHOO

Discipline and Appeal Rules

SS. 20, 29, 80, 81, 99, 100(2)(nr)

s. 80

s. 29(4)

s. 99

Art. 226

s. 100(2)

s. 29( l)

s. 20

s. 7

N. N. Bi11dra

Dhebar

Sarjoo Prasad

N. N. Venkltacha

A. G. Pud

M. R. K. Pillai

Ramaswaml

High Court of Kerala

S. Govinda Menon

Kerala Government

T. N. S. Raghavan

State of Kcrala

T. N. S. Raghavan

Madras Act XIX of 1951

Mathew

S. Velu Pillai

Velu Pillai

Govinda Menon

S.

Govinda Menon

Nadivllla Vallathu Deva1wom

Kottlyor Devaswom

Charitable Endowments Act

Section 20

Section 29

Section 99(1)

July 24, 1925

s. 80

Central Government

s. 80

s. 80

Section 81(1)

s. 80

Maitland

Keeton

s. 80

ss. 80 and 81

s. 29(4)

s. 99

section 29

Charitable Endowments Act

section 29

section 100(2)

s. 29

s. 29

Sarjoo Prasad

Bindra

s. 29

s. 29

s. 29

s. 29(4)

s. 99

s. 29(1)

s. 29

s. 100(2)(m)

s. 29

s. 100(2)(m)

s. 29

s. 29(1)

s. 29(1)

s. 20

s. 29

s. 20

s. 29

s. 20

s. 29

Kcrala High Court

Vaidialingam

S. Govinda Menon

Kerala High Court

March 8, 1963

June 6, 1963

Art. 226

January 5, 1966