Case: Sri-La-Sri Subramania Desika Gnanasambandapandarasannadhi Vs. State Of Madras And Another

of this Court in Shri Radheshyam Khare v. State of Madhya Pradesh, 1959 SCR 1440 : (AIR 1959 SC 107 ). In that case, it was held that Ss. 33A and 57 of the C.P. and Berar Municipalities Act, 1922, differed materially in their scope and effect, and that the nature of the orders which can be passed under the two respective Sections was not the same. That is why this Court found that whereas in taking action under S. 58A the State Government was required to act judicially, the same would not be said to be true about S. 57. We do not see how this decision can afford any assistance to Mr. Chetty in support of his argument that S. 64(4) is entirely different in character from S. 64(6). It is plain that just as while acting under S. 64(3), the Government has ultimately to consider whether a case has been made out for the issue of a notification, so while acting under S. 64(4), Government has to consider whether a case has been made out for cancelling the notification or for extending it, and on each occasion, where a decision has to be taken under S. 64(4), the process of reaching the decision is exactly similar to the process in reaching decision under S. 64(3). All relevant facts in regard to the management of the endowment must be taken into account, and the question to be considered on each occasion would be whether or not supervision by the Executive Officer under the notification is required in the interests of public good. Ii is difficult to see how the Government can legitimately and satisfactorily consider the question as to whether the notification should be cancelled, unless it hears the party asking for such cancellation. Similarly, it is difficult to understand how Government can legitimately and reasonably decide to extend the notification, unless it gives an opportunity to the Trustee to show cause why it should not be continued. One can imagine several circumstances which may arise after the issue of the first notification and which would help the Trustee to claim that the notification should either be cancelled or should not be extended. The nature of the order which can be passed under S. 64(4) and its effect on the rights of the trustee are exactly similar to the order which can be passed under S. 64(3). We are, therefore, satisfied that the High Court was right in holding that it was obligatory on the respondent State as a matter of natural justice to give notice to the appellant before the impugned notification was passed by it. 17. That takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid. The first reason, as we have already indicated, is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. This reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty, and so, when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned Order was that he had not been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court. 18. The second reason given by the High Court appears to be plainly erroneous. In assuming that the impugned Order would come to an end on September 30, 1961, the High Court appears to have ignored the fact that before it delivered its judgment, a new Act had come into force (Madras Act XXII Of 1959). This Act came into operation on January 1, 1960. Section 72 (7) of this Act provides that Any notification published under sub-s. (1) or sub-s. (8) of S. 64 of Act XIX of 1951 before the commencement of this Act shall be as valid as if such notification had been published under this Act. This provision has again been subsequently amended by Act XL of 1961, and the amended provision is retrospectively brought into operation from January 1, 1960. We do not propose to consider in this appeal the effect of these amendments, because it is enough for our purpose to state that as a result of the subsequent Act which had already come into force on the date when the High Court delivered its judgment, it is obvious that the impugned notification would not automatically come to an end on September 30, 1961. This position is not disputed by Mr. Chetty and appears to be plain; so that the main reason which weighed with the High Court in not issuing a writ in favour of the appellant that the impugned notification would remain in operation for a very short period after it delivered its judgment, is found to be erroneous; and the impugned notification would continue in operation without the appellant getting an opportunity to show cause why it should not continue to be in operation. We are, therefore, satisfied that the High Court should have granted the prayer made by the appellant for the issue of an appropriate writ cancelling the impugned notification. Though the impugned notification has been issued in 1956 for five years, its life gets statutorily extended, and the only way in which the appellant would be able to show cause why the said notification should not be extended in respect of his Kattalai is to quash the said notification.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. That takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid.The first reason, as we have already indicated, is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. This reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty, and so, when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned Order was that he had not been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court18. The second reason given by the High Court appears to be plainly erroneous. In assuming that the impugned Order would come to an end on September 30, 1961, the High Court appears to have ignored the fact that before it delivered its judgment, a new Act had come into force (Madras Act XXII Of 1959). This Act came into operation on January 1, 1960. Section 72 (7) of this Act provides that Any notification published under sub-s. (1) or sub-s. (8) of S. 64 of Act XIX of 1951 before the commencement of this Act shall be as valid as if such notification had been published under this Act. This provision has again been subsequently amended by Act XL of 1961, and the amended provision is retrospectively brought into operation from January 1, 1960. We do not propose to consider in this appeal the effect of these amendments, because it is enough for our purpose to state that as a result of the subsequent Act which had already come into force on the date when the High Court delivered its judgment, it is obvious that the impugned notification would not automatically come to an end on September 30, 1961. This position is not disputed by Mr. Chetty and appears to be plain; so that the main reason which weighed with the High Court in not issuing a writ in favour of the appellant that the impugned notification would remain in operation for a very short period after it delivered its judgment, is found to be erroneous; and the impugned notification would continue in operation without the appellant getting an opportunity to show cause why it should not continue to be in operation. We are, therefore, satisfied that the High Court should have granted the prayer made by the appellant for the issue of an appropriate writ cancelling the impugned notification. Though the impugned notification has been issued in 1956 for five years, its life gets statutorily extended, and the only way in which the appellant would be able to show cause why the said notification should not be extended in respect of his Kattalai is to quash the said notification.