High Court
Case Details
Neutral Citation No. - 2023:AHC:153307-DB Court No. - 40 Case :- WRIT - C No. - 31065 of 2022 Petitioner :- Vinit Kumar Jha and 2 Others Respondent :- State Of U.P. and 3 Others Counsel for Petitioner :- Rahul Agarwal Counsel for Respondent :- CSC,A.S.G.I.,Sushil Kumar Pandey Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Prashant Kumar,J.
Legal Reasoning
1. Heard Sri Rahul Agarwal, learned counsel for the petitioners and Sri P.K. Pandey, learned Additional Chief Standing Counsel for the respondents. 2. By means of present writ petition, the petitioners have sought following reliefs:- "(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned rejection order dated 22.07.2021 (Annexure No.1 to the writ petition) passed by Sub Divisional Magistrate, Ghaziabad. (ii) Issue a writ, order or direction in the nature of mandamus directing the Sub Divisional Magistrate, Ghaziabad to issue the surviving member certificate to the petitioners. In the alternative (iii) Issue a writ, order or direction in the nature of mandamus directing the District Magistrate, Ghziabad to consider and decide the representation dated 15.02.2022 (Annexure-7 to the writ petition) for issuance of Surviving Member Certificate to the petitioners. (iv) Issue any other writ, order or direction which this Hon'ble Court may deem just and proper in the circumstances of the case; and (v) Award costs of the petition to the petitioner throughout." 3. Sri Rahul Agarwal, learned counsel for the petitioners submits that the petitioners are Overseas Citizens of India (OCI) card holders issued under Section 7A of the Citizenship Act, 1955 and Class-I legal heirs of late Mr. Praveen Kumar Jha, who had died in Moscow, Russia on 04.11.2020. Thereafter, the petitioners had moved an application before the Sub Divisional Magistrate, Tehsil Sadar, Ghaziabad on 08.07.2021 for obtaining 'Surviving Member Certificate' in the prescribed format and deposited the requisite fee alongwith all necessary documents including the death certificate of late Praveen Kumar Jha. After completion of the verification at the local address of the petitioners, a report was submitted to the concerned Tehsildar and the same was forwarded to the Sub Divisional Magistrate for approval. By the impugned order dated 22.07.2021, the application of the petitioners has been rejected on the ground that authenticity of the death certificate of late Mr. Praveen Kumar Jha could not be ascertained at Ghaziabad as he had passed away outside India. It is submitted that before passing the impugned order, the petitioners have not been provided with any opportunity of hearing by the District Magistrate, Ghaziabad. An e-mail was sent by the Consular Wing, Embassy of India, Moscow to the Resident Commissioner, Uttar Pradesh on 24.12.2021 certifying that death of Mr. Praveen Kumar Jha has been registered at this Embassy on 18.11.2022 vide No.29/20. Thereafter, the petitioners have moved a representation before the District Magistrate, Ghaziabad on 15.02.2022 seeking directions for issuance of the surviving member certificate, which is still pending consideration. 4. Sri Rahul Agarwal further submits that while passing the impugned order dated 22.07.2021 the Sub Divisional Magistrate has failed to take into account that Mr. Praveen Kumar Jha was an Indian Citizen and the application for the surviving member certificate could not have been rejected solely on the ground that he had passed away outside India. The concept of a legal heir is a status granted by law. An executive order issued by the Tehsildar by way of legal heirship/surviving member certificate cannot alter the scope of the status and rights, which are conferred upon by law. He has placed reliance on Rules 9 and 10 of Citizen (Registration at Indian Consulates) Rules, 1956, which clearly stipulate for verification after production of a local death certificate by a Consular Officer prior to entering the name of the deceased in Register of Death. Since the authenticity of the death certificate of the deceased was verified at multiple levels, there was no ground for the Sub Divisional Magistrate to doubt the veracity of the death certificate of the deceased. In support of his submission, he has placed reliance on the judgement of Hon'ble Supreme Court in J.R. Raghupathy & others v. State of A.P. & others (1988) 4 SCC 364, wherein it was held that judicial review over the acts of the executive fell broadly into two categories namely (a) failure to exercise discretion and (b) excess or abuse of discretion, as well as the judgement in Oriental Bank of commerce vs. Sunder Lal Jain & another (2008) 2 SCC 280, wherein it was observed as under:- "8. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr. : Note 187-- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed. Note 192 --Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196-- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well-settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over- look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. Note 206.--.......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action." 5. Sri Rahul Agarwal has also placed reliance on the judgement of Madras High Court in case of P. Venkatachalam and ors v. The Tehsildar, Kumarapalayam Taluk and ors decided on 17.06.2022, MANU/TN/5492/2022 wherein it was held:- "65. To sum up, our answers to the questions formulated in paragraph 10, (supra), are as under: A. Legal heirship is a status governed by the respective personal law of parties through various statutes.The certificates issued by the Tahsildar amount to nothing more than a relationship certificate reflecting the opinion of the Tahsildar as to the relationship of the applicant and others named therein with the deceased. Consequently, the certificate issued by the Tahsildar does not affect the legal right of any party and has no bearing on the status of a legal heir which is conferred on an individual under his/her personal law. B. An administrative circular does not have the force of law and does not bind the citizen or the Court. They, however, bind the Tahsildar as a measure of ensuring administrative discipline and securing consistency in decision- making. The discretion of the Tahsildar is circumscribed by these administrative instructions which may be issued, from time to time, by the Commissioner of Land Administration. C. Consequently, a writ of mandamus under Article 226 of the Constitution will not lie to direct the Tahsildar to issue a legal heirship certificate contrary to the terms of a circular. An exception to the aforesaid principle is where the circular, ex-facie, suffers from the vice of arbitrariness or perversity or runs counter to any provision of law. In such cases, it is open to the Court to ignore the circular and grant such relief(s) as may be permissible in law. D. In the absence of any conflict with any primary or delegated legislation holding the field, G.O. Ms. No.581 Revenue Department dated 03.04.1987 casts a duty on the Tahsildar to issue a legal heirship certificate as per the norms and guidelines prescribed by the Commissioner of Land Administration. G.O. Ms.No.581 Revenue Department dated 03.04.1987 is undoubtedly a law as it has been issued in exercise of executive power under Article 162 of the Constitution of India. Consequently, when the Tahsildar keeps the application pending and does not decide on it one way or the other, a writ of mandamus may be issued by the High Court directing the Tahsildar to decide the application in terms of G.O.Ms.No.581 Revenue Department dated 03.04.1987 and the applicable circulars. The decisions in N.Dhanalakshmi (supra) and E. Thirumurthy (supra), to the extent that they hold that the Tahsildar has no power to issue a certificate of this nature, will stand overruled. E. A legal heirship certificate issued by a Tahsildar cannot be equated to a succession certificate issued by a Court under Part X of the Indian Succession Act, 1925, in respect of the debt or securities. In this view of the matter, the High Court, in exercise of Article 226 of the Constitution of India, does not create any new mechanism as stated in the order of reference. F. The classification of persons as Class-I and Class-II heirs in Circular No.9 of 2019, dated 24.09.2019, and their application to the heirs of a deceased female Hindu or non-Hindu would lead to chaos. We find the entire edifice of the classification in the Circular is founded on a fallacy that the concept of Class-I and Class-II legal heirs which are applicable to the heirs of a deceased Hindu male under Section 8 of the Hindu Succession Act could be extended across the Board to all religions. G. Consequently, the Government of Tamil Nadu is directed to issue a fresh Government order in lieu of Circular No.9 of 2019 without the anomalies pointed out, supra, in particular the usage of the expressions “Class-I” and“Class-II” legal heirs under the Hindu Succession Act, 1956. The Government will also consider incorporating a father, blood brother/sister as eligible applicants for unmarried deceased, as also the administrative remedies of appeal and revision found in paragraphs 9 and 10 of the existing Circular No.9 of 2019. This exercise shall be completed within a period of six weeks from today." 6. So far as factual and legal aspect of the matter is concerned, the same is not disputed by learned Additional Chief Standing Counsel. 7. Bare perusal of the impugned order reveals that the impugned order has been passed by the respondent no.2 without giving any kind of opportunity to the petitioners. A fact finding authority is under statutory obligation to consider with due care every fact for and against the petitioner and to record its finding in a manner, which would clearly indicate as to whether the facts on which the order was passed have been established. Absence of the findings to disclose reasons in an order in the manner indicated above would render the order to be indefensible/unsustainable. Reason is the heart beat of every conclusion. In the absence of reasons the order becomes lifeless. Non recording of reasons renders the order to be violative of principles of natural justice. Reasons ensures transparency and fairness in decision making. It enables litigant to know reasons for acceptance or rejection of his prayer. It is statutory requirement of natural justice. Thus, failure to give reasons amounts to denial of justice. 8. The principle of natural justice has twin ingredients; firstly, the person, who is likely to be adversely affected by the action of the authorities, should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with higher degree of satisfaction. The order of an administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality. The distinction between passing of an order by an administrative or quasi-judicial authority has practically extinguished and both are required to pass reasoned orders. 9. In A.K. Kraipak and others Vs. Union of India and Others, reported in (1970) 1 SCR 457, Hon'ble Supreme Court held that the concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice." 10. Accordingly the order dated 22.07.2021 is set aside and the matter is remitted to the District Magistrate, Ghaziabad (respondent no.3) to decide it afresh after affording due opportunity of hearing to the petitioners within two months from the date of production of a certified copy of this order. 11. Accordingly, this writ petition is partly allowed. Order Date :- 31.7.2023 RKP Digitally signed by :- RAKESH KUMAR PATEL High Court of Judicature at Allahabad