TMI Blog1951 (8) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution. The second ground was that, in making a declaration under Section 8, U. P, Court of Wards Act, the opposite-party was discharging a quasi-judicial function and, in doing so, it had contravened the fundamental principles of natural justice by not hearing the petitioner and giving him an opportunity to repudiate the charges. 2. The petitioner, in order to establish these grounds, filed a lengthy affidavit with his petition. This was met by a counter affidavit filed on be. half of opposite party No. 2, the Court of Wards and there after a rejoinder-affidavit was filed on behalf of the petitioner. It appears unnecessary to set out in detail all the facts that have been given in these three lengthy affidavits. We need only mention a few salient facts which are necessary for the purpose of deciding the question whether a writ should or should not issue. 3. Admittedly, the petitioner is a proprietor within the meaning of the U. P. Court of Wards Act, owning an estate situated partly in the district of Gorakhpur and partly in the district of Deoria. He had been managing this property for a long time. On 29.6.1949, a notice was served on him by the Collector of Deoria, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions made against him, he made a request that, after necessary enquiry and after affording him a chance of hearing, the notice under Section 8, Court of Wards Act, might be discharged. Subsequent to this notice, there was no further enquiry and no hearing of the petitioner. On 23-5-1950, the opposite party no. 1, the State of Uttar Pradesh, issued a notification, declaring the petitioner a disqualified proprietor Under Section 8 (1) (d) (v), U. P. Court of Wards Act, 1912, and directed that the declaration was to remain in force for a period of two years from the date of its publication. In pursuance of this declaration, superintendence of the estate of the petitioner was assumed by the Court of Wards and the estate is still under the management of the Court of Wards. He has, therefore, come up to this Court with the prayers mentioned above. 4. Before going into the constitutional question whether Section 8 (1) (d) (v), U. P. Court of Wards Act, 1912, is ultra vires of the legislature in view of the provisions of Article 19(f) of the Constitution, we have considered the alternative ground that was put in this petition to the effect that the declaration was void inasmuch as it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y does not contain facts from which these grounds have been inferred but Sub-section (2) of Section 8 does not require that the proprietor should be furnished with all the facts in addition to the statement of the grounds. The grounds furnished to the petitioner were, in no respect, vague. They contained specific allegations and, in our opinion, any further details were not necessary. 6. The second point that was urged by the learned counsel for the petitioner was that the petitioner had not been given an opportunity of showing cause why a declaration should not be made in regard to him. On this point, there has been considerable argument by the learned counsel on both aides. The main contention is centered round the interpretation of the words 'opportunity of showing cause' used in this Sub-section. It has been contended by the learned counsel for the petitioner that the whole conduct of the proceedings which led to the making of the declaration by the Government would show that, at no stage, was the petitioner given a chance to contest the evidence on the basis of which the Government bad come to the view that there had been mismanagement by him, to adduce evidence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are made against one. With due respect, we may at once say that we entirely agree with this interpretation of the words 'opportunity of showing cause' used in Sub-section (2) of Section 8 of the U. P. Court of Wards Act, 1912. It is obvious that it cannot be said that an opportunity of showing cause was granted when the petitioner was only called upon to submit a written explanation, was not clearly told what the entire evidence available against him was and was not afforded any opportunity to adduce evidence to controvert the charges by adducing his own evidence. It was contended by the learned counsel for the opposite-parties that the petitioner no-where asked for an opportunity to produce evidence or to examine the evidence available against him and consequently it was sufficient compliance if the Government gave him an opportunity to Submit a written explanation. Firstly, we are of the view that Sub-section (2) of Section 8 of the Act enjoins a duty on the Government itself to ensure that the opportunity of showing cause is adequate and, therefore, the Government must, on its own initiative, adopt such a procedure that ah opportunity does become available to the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , A. I. R. (35) 1948 P. C. 121. That was a case of a member of the Indian Civil Service, Shri I. M. Lall, who had been dismissed from service after an enquiry bad been held under Rule 65 of the Civil Service (Classification and Control) Rules. During that enquiry, the grounds, on which it was proposed to take action, were reduced to the form of definite charges which were communicated to Shri Lall and he was asked to show cause why he should not be dismissed. Thereafter, evidence was recorded and. on the finding that there were grounds for dismissing him, an order of dismissal was passed. It was contended by Shri I. M. Lall that the procedure adopted in dismissing him did not comply with the provisions of Sub-section (3) of Section 240 of the Government of India Act, 1935, which required that no member of a Civil Service could be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Their Lordships of the Privy Council, in deciding the case, held that the opportunity, which had been given to Shri I. M. Lall during the proceedings under Rule 55 just mentioned, was not a sufficient comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause under Sub-section (3) of Section 240, Government of India Act, 1935; he need not be given any opportunity at all to give evidence. All that their Lordships said was that it would not be reasonable that the civil servant should ask for a repetition of the enquiry that had already been made under Rule 55 if that enquiry had been duly carried out. This remark does not exclude the right of a civil servant to give any evidence which he may not have been appropriately required to give at the stage of the earlier enquiry under Rule 55. In fact, the remark that it would not be reasonable that a civil servant should ask for a repetition of the enquiry held under Rule 55 would appear to contain an implication that if there had not been an earlier enquiry duly carried out, it would have been held that the civil servant had a right at this sub. sequent stage to adduce evidence when showing cause why the proposed action should not be taken against him. The views of their Lordships of the Privy Council in that case, therefore, only go to confirm our view that even in the present case, an opportunity should have been given to the petitioner to put forward all necessary materials when he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42) when holding that objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter of the enquiry, or on the absence of essential preliminaries will be deemed to be questions affecting jurisdiction. It was held that it is such matters 'extrinsic to the adjudication impeached' which raise questions of jurisdiction. Learned counsel argued that, in the present case, the opportunity to show cause was not a matter extrinsic to the declaration which is in question but was intrinsic to it and consequently it cannot be held to raise a question of jurisdiction. In our opinion, this argument is not tenable because the provision for giving an opportunity to show cause has to be observed prior for the making of the declaration and is a matter extrinsic to the actual adjudication which consists of making the declaration and consequently the views expressed rather go to show that, in the present case, a question of jurisdiction of the State to make a declaration does arise than that no such question arises. We are, therefore of the view that, in this case, the declaration was made by the State Government without jurisdiction inasmuch as the State d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f certiorari should issue, such a writ cannot be issued in case there is an alternative remedy. A Full Bench of this Court in Asiatic Engineering Co. Ltd. v. Achhru Earn, Misc. Writ. Appln. No. 287 of 1950 has held that the question of existence of a specific and adequate alternative remedy is material only when the question of issue of a writ of mandamus is under consideration and not in the case of a writ in the nature of certiorari or a prohibition. This argument also, therefore, has no force. 10. In view of the fact that we have come to the decision that the declaration must be set aside on the ground of want of jurisdiction due to non-compliance with the provisions of Sub-section (2) of Section 8, U. P. Court of Wards Act, 1912, we have considered it unnecessary to examine the alternative ground taken by the petitioner that the provisions of Section 8 (1) (d) (v), U. P. Court of Wards Act are ultra vires in view of Article 19(f) of the Constitution. 11. As a result, we allow this petition, quash the declaration made by the Government Under Section 8, U. P. Court of Wards Act in respect of the petitioner and direct that he be restored to pos-session of his property taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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