Citation Codes

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Case Number

A.S No. 32 of 1960, from O.P 375 of 1958

Advocates

For the Appellant: V. P. Gopalan Nambiar

Judges

M.A Ansari, C.J
T.K Joseph, J.

Acts

S. 3(1)(a) of the Madras Preservation of Private Forests Act, 1949, hereinafter referred to as the Act,

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Smart Summary

Case Summary — Ansari, C.J.

Factual and Procedural Background

The appellant obtained, by agreement dated May 10, 1957, the right to cut and remove 150 trees from unsurveyed parts of the Kovilakam forests in Nilambur Amsom, Ernad Taluk, after a sanction under Section 3(1)(a) of the Madras Preservation of Private Forests Act, 1949. On May 12, 1957 the appellant applied to the Collector of Kozhikode for permission to cut and remove 50 trees under Section 3(2) of the Act. The Collector forwarded the application for report; the Special Forest Range Officer reported against granting permission. The appellant complained that the report was prepared in his absence and without a visit to the area. On June 7, 1957 the Collector rejected the application (Ext. P-1), stating that the area was the same where the appellant had previously worked under a permit and that granting the permit would be detrimental to the forest.

The appellant sought re-inspection and, on July 8, 1957, made a renewed application for permission to cut 150 trees supported by a list and documents. Before decision on this renewed application, a subsequent forest department report favourable to the appellant was received, yet the Collector refused permission on September 17, 1957 (Ext. P-2). A further application on September 24, 1957 was rejected on November 1, 1957. The appellant appealed to the Government under Section 4 of the Act; the Government refused to reconsider. Thereafter the appellant filed a writ petition under Article 226 of the Constitution; the learned Judge dismissed it on the ground that several grounds now urged had not been taken before the Government and thus could not be raised first in Article 226 proceedings. The appellant appealed to this Court.

Legal Issues Presented

Whether the subsequent applications were fresh applications for permission (supported by a favourable later report and complaints about the earlier report being ex parte), or merely requests to reconsider the earlier order, such that the appellant's failure to raise certain grounds before the Government precluded raising them in Article 226 proceedings.
Whether the Collector's and appellate orders were illegal for failing to assign reasons (i.e., whether the orders were non-speaking and therefore invalid).
Whether the Collector's decisions were in fact decisions of the Collector (the deciding authority) or merely the acceptance of forest officers' recommendations, thereby violating the principle that the authority who hears must decide.
Whether the decisions rested on irrelevant considerations such that valuable rights of the appellant were lost.

Arguments of the Parties

Appellant's Arguments

The later applications were substantial, fresh requests for permission supported by a favourable later report and by objections that the earlier report had been prepared ex parte; they should not have been treated as mere requests for reconsideration.
The rejection orders lacked reasons explaining why the grounds urged for granting permission were unacceptable; consequently the orders were illegal and should be vacated.
The Collector acted merely by accepting forest officers' recommendations, so the decisions were not decisions of the Collector as the deciding authority.
Valuable rights of the appellant were lost because the decisions rested partly on irrelevant considerations.

Collector / Respondent Explanation

The Collector explained to the appellate authority that the subsequent rejection orders were passed after considering both the earlier and later reports, and that the earlier report was preferred. The Collector thus treated the matters jointly rather than as independent fresh grants.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw, 1951-1 KB 711 (p. 718)	Explains the meaning and importance of a "speaking order" — an order that gives reasons so that a superior court can understand why the decision was made.	The Court relied on this authority to emphasise that quasi-judicial authorities should give reasons in the form of speaking orders; the absence of reasons in the Collector's orders was criticised on this basis.
Joseph v. Superintendent of Post Offices, Kottayam, 1960 Ker LT 1304; (AIR 1961 Kerala 197)	Authority where this Court had vacated an order on the ground that it failed to assign reasons for its decision (illustration of the speaking order principle).	The Court invoked this case as a precedent where non-assignment of reasons led to vacation of the decision, and used it to observe that reasons are necessary where there is an allegation of an ex parte report and no visit.
Noohu Kannu Rowther v. Municipality of Changanacherry, 1960 Ker LT 807	Holds that a refusal by a municipal authority was bad where matters irrelevant to the statutory criteria were taken into account.	The Court cited this case to state the general principle that discretion must not be exercised on irrelevant considerations, and observed that had the appellant shown irrelevant considerations were actually taken into account, that ground would have been strong; but the appellant did not establish that here.
Raghava Menon v. Inspector General of Police, Kerala, A.S. No. 220/60, Dated 13-10-1960, 1961 Ker LT 35; (AIR 1961 Ker 299)	Clarifies that the rule "the authority who hears must decide" does not preclude reasonable delegation; the key is that the authority must conscientiously apply its mind to the record and reach its own conclusions.	The Court applied this principle to hold that neither the Collector's nor the appellate authority's orders were invalid on the basis that they merely accepted officers' reports: the appellate authority sought explanation and applied its mind to the materials before it.

Court's Reasoning and Analysis

The Court examined the appellate records and the Collector's explanation, accepting the Collector's statement that both earlier and later reports were considered and the earlier report was preferred. On that factual footing the Court found the appellant's complaint that later grounds were not adjudicated was not justified.

The Court emphasised the general administrative-law principle that quasi-judicial orders should be "speaking orders" with reasons. It noted that had the Collector not provided the appellate authority with an explanation, the orders might have been unclear on their face. The Court pointed out that the Collector did not set out reasons for preferring the earlier report over the later favourable report — a gap which was notable given the appellant's complaint that the earlier report was ex parte and did not involve a site visit.

Despite these criticisms, the Court declined to grant a mandamus directing the Collector to vacate earlier orders and to re-adjudicate the earlier applications. The Court reasoned that the appellant was not precluded from making a fresh application with updated materials; such a fresh application would allow the Collector to decide after giving reasons in the form of a speaking order and affording the appellant an opportunity to meet any adverse materials.

On the substantive grounds:

Second ground (non-speaking orders): The Court acknowledged the defect in reasons but held it insufficient to justify reopening past orders by mandamus, given the Collector's explanation and the availability of a fresh application.
Fourth ground (irrelevant considerations): The Court reiterated the principle that discretion must not rest on irrelevant matters (citing Noohu Kannu Rowther), but found that the appellant did not prove that irrelevant considerations were actually taken into account; therefore this ground failed.
Third ground (authority who hears must decide): Applying Raghava Menon, the Court held reasonable delegation is permissible provided the deciding authority applies its mind. The appellate authority had called for an explanation and reached a conclusion on the materials, so the orders were not invalid for want of independent consideration.

The Court also observed practical considerations: four years had elapsed since the applications were made, and circumstances may have changed; accordingly it was inappropriate to direct fresh adjudication of the old applications rather than permit a new application based on current facts and reports.

Holding and Implications

APPEAL DISMISSED.

Direct effect: The appeal was dismissed with costs. The appellant retains the right to file a fresh application for permission to cut and remove trees; the authorities are to decide any such fresh application conscientiously and to give reasons in the form of speaking orders and to afford the appellant an opportunity to meet any adverse materials.

Broader implications: The Court reiterated and reinforced existing administrative-law principles — that quasi-judicial orders ought to be speaking orders, that discretion must not rest on irrelevant considerations, and that reasonable delegation is permissible provided the deciding authority applies its mind. The opinion did not purport to establish a novel legal precedent beyond applying and stressing these established principles, and the decision leaves intact the requirement that fresh applications may be brought where the record or circumstances have changed.

Source: Opinion of Ansari, C.J., reproduced in the materials provided. No information beyond the text of that opinion has been added.

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Moideenkutty v. State Of Kerala .

Ansari, C.J:— This appeal is by the writ petitioner, whose prayer for getting the order of September 17, 1957, by the Collector of Kozhikode, vacated has not been allowed. The circumstances, under which the aforesaid petition has been filed in this court, can be shortly stated.

2. The appellant had, on May 10, 1957, obtained an agreement whereby he has been given a right to cut and remove 150 trees from the unsurveyed parts of the Kovilakam forests in Kanhirapuzha and Vadakkummuri Malavaram in Nilambur Amsom, Ernad Taluk. The lease (had?) been executed alter a sanction under S. 3(1)(a) of the Madras Preservation of Private Forests Act, 1949, hereinafter referred to as the Act, and the appellant on May 12, 1957, requested the Collector of Kozhikode District, who has been impleaded as the second respondent to the writ petition, for permission to cut and remove p. 50 trees under S. 3(2) of the Act. The Collector forwarded the application to the proper authorities for report and the Special Forest Range Officer reported against the permission being granted. The complaint in the writ petition is about the report being without the appellant's being asked to accompany the officer when he inspected and even the report to be without any visit to the area. On June 7, 1957, the Collector rejected the application, and the rejection order is marked as Ext. P-1. The relevant extract from the order runs as follows:

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

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

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

4. The appellant, on September 24, 1957, again applied, which was also rejected on November 1, 1957-4 This third order of rejection reads as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

15. But the appellant is not precluded from making a fresh approach to the authorities concerned, which would conscientiously decide with reasons avid on materials, which the appellant may wish to place before the authorities in further support of the fresh application for the permission. Should the deciding authorities desire to rest orders on materials, of which the appellant has no knowledge the authorities would afford the appellant fair opportunity of meeting such materials. After the reasons for the orders are fully given, and, should the order be again adverse, the appellant would not find it difficult to challenge the order before the Appellate Authority. Four years have lapsed since the applications were made in this case, and the authority should not be directed to decide on what was then alleged. Fresh facts may have arisen, or fresh reports may now be necessary, which the authorities considering the application may be anxious to take into consideration, and a new application for such purposes would be more appropriate. In these circumstances, we would dismiss the appeal with costs, leaving the appellant to his right of filing a new application.

FE/C.

16. Appeal dismissed.

Moideenkutty v. State Of Kerala .

Case Summary — Ansari, C.J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Collector / Respondent Explanation

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Moideenkutty v. State Of Kerala .

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