KAILASH CHANDRA JAIN Vs. STATE OF U P

JUDGEMENT

(1.) I agree with my brother Dwivedi that the State Government revised under Section 7-F an order passed by the Additional District Magistrate and not the order passed by the Commissioner under Section 3(3) refusing to revise it. The record of the case before the Additional District Magistrate was summoned by the State Government and the requirement of Section 7-F was fulfilled. The permission to file a suit was refused by the Additional District Magistrate. It cannot be deemed to have been refused by the Commissioner even though he confirmed it. The power of Section 7-F is to be exercised against an order refusing to grant permission for the filing of a suit and it was the Additional District Magistrate who refused it and not the Commissioner. The Commissioner's jurisdiction was to revise the Additional District Magistrate's order if he found that he had acted illegally, incorrectly, improperly or with irregularily. He did not act as an appellate Court. Consequently the State Government was required, if at all, to send for the record of the Additional District Magistrate's court and not that of the Commissioner's.

(2.) There is no question of applying the doctrine of merger. In the first place the Commissioner does not exercise powers as an appellate authority; his jurisdiction to interfere with the order is restricted to interference on the ground of acting illegally or with material irregularity or wrongful refusal to act. He has no jurisdiction to go into other matters and, therefore, when he finds that the District Magistrate did not act illegally or with material irregularity or did not wrongfully refuse to act, it cannot be said that the Additional District Magistrate's order merges in his order, I receive considerable support for my view from Harimal Oil Mills v. Assistant Collector, Central Excise, AIR 1961 Madh Pra 148 where it was laid down by Dixit, C. J. that the doctrine of merger of orders cannot be applied to administrative orders. In Dwarka Nath v. Gayatri Devi, 1961 All LJ 353, I said that a permission on the basis of which a civil Court can, take cognizance of a suit for ejectment can be granted only by the District Magistrate. Unless there are two permits, there cannot arise any question of merger. Consequently when a Commissioner refuses to interfere with, the District Magistrate's order granting a permission, his order does not merge with the permission granted by the District Magistrate. Finally, as my learned brother has pointed out, the question is what records should be called for and not whether one order merges in another pr not. Even though there may be a merger of one order with another, there is no merger of, the records in which the two orders are passed.

(3.) With great respect I do not think that any question of interpreting the word "may" arises at all. The word "may" used in the first sentence cannot possibly mean "shall". The State Government cannot be forced to call for the record in every case decided by a Magistrate; the matter is at its discretion and the word "may" was the only appropriate word that could be used. The objection of the appellants is not that the word "may" means "shall" but that the State Government cannot make an order unless it first calls for the record. What was argued is that the calling for the record was a condition precedent to the exercise of the power conferred by Section 7-F; not that the Government must call for the record in every case but that if it wants to exercise the power under Section 7-F, it must. The contention was that either both, the acts (of calling for the record and making an order) may be done or neither. I do not agree with this contention. Calling for the record is only a procedural step and not a condition precedent to the exercise of jurisdiction. The jurisdiction of the State Government to make an order is not derived from the calling for the record. Not calling for a record is only a procedural irregularity which, is not fatal. Section 7-F only requires the record to be called for; it does not lay down what the Government should do to it after it receives it. The Government may not peruse it at all even though it receives it and yet can pass an order, which will be fully valid. If it can pass a valid order even without perusing the record, it does not stand to reason that it cannot pass a valid order without sending for the record.