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Ashok Parmar Vs. State and Ors. - (High Court of Jammu and Kashmir) (14 May 2018)

Wrong interpretation of law itself is not misconduct as wrong decision is subject to judicial supervision in an appeal

MANU/JK/0364/2018

Property

The pivotal issue in this batch of writ petitions revolves around the validity of report dated 30th May, 2008 submitted by the J & K State Accountability Commission ('the Commission') to the State Government. The Commission in its report held that, transfer of any title or interest in immovable property on the basis of an unregistered deed cannot vest the land or any rights in the transferee. Thus, the transfer was made in violation of provisions of Transfer of Property Act. It was also held that Basant Ram, the then Tehsildar, without giving an opportunity of hearing to the complainant and in stark contravention of Section 28-A(2) of J & K Agrarian Reforms Act, 1976 attested the mutation to divest the complainant of his rights in the property. Thus, the Tehsildar acted in hot haste and his action amounts to 'allegation', as defined in Section 2(3) of the Accountability Commission Act, 2002.

It was further held that, the Act does not bar Commission's jurisdiction to consider a complaint in respect of quasi-judicial order. It was also held that, Girdawar acted in violation of Section 138 of Transfer of Property Act, as he changed the entry on the basis of unregistered deed. The Patwari also recorded mutation in the Mutation Register notwithstanding the fact that, lease was not registered. It was held that Tehsildar, Girdawar and Patwari, therefore, deserve punishment in accordance with Rule 30 of Civil Services (Classification, Control & Appeal) Rules, 1956. Accordingly, recommendations were made to terminate services of Basant Ram, the then Tehsildar; Om Prakash the then Girdawar; Saleem Bandey, the then Patwari and in respect of two Deputy Commissioners, namely Ashok Parmar and Atal Duloo, who did not take any action for a period of two years, it was held that they owe an explanation to the State Government and the same will be well advised to look into the matter and to take necessary steps.

The Supreme Court in the case of Union of India and Others v. K.K. Dhawan, has held that, an officer, who exercises judicial or quasi judicial powers, acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. It has further been held that where the officer acts in a manner as would reflect on his reputation or integrity or good faith or devotion to duty or there is a prima facie material to show recklessness or misconduct in the discharge of duty and where he acts in a manner, which is unbecoming of Government servant, the disciplinary action can be taken against such an officer. In Zunjarrao Bhikaji Nagarkar v. Union of India and Others, it was held by the Supreme Court that wrong application/interpretation of law itself is not a misconduct because wrong decision is subject to judicial supervision in an appeal. It was also held that if every error of law was to be constituted a charge of misconduct, it would impinge upon independent functioning of quasi judicial officers.

The Commission has failed to appreciate the expression 'allegations' as used in Section 2(3) of the Act in its proper perspective. It ought to have appreciated that, complainant being a tenant was conferred the rights of prospective owner under Section 8 of the J & K Agrarian Reforms Act and, as such, the complainant was not competent to transfer the land in terms of the Section 28 read with Section 28-A of the Act. The Commission has also failed to take into account the fact that, Section 32 of the Act has an over-riding effect on the provisions of Sections 107 and 138 of the J & K Transfer of Property Act. Therefore, the finding recorded that, the perpetual lease deed was not a registered document and same could not be relied upon by the then Tehsildar for invoking Section 28-A of the Act is perverse. In any case, some erroneous interpretation of provisions of law could not have brought the action of the delinquent officials within the purview of the expression 'allegations' as defined under Section 2(3) of the Act.

There is no allegation of corruption, favouritism, nepotism or lack of integrity in the complaint and neither any corrupt motive has been attributed to the delinquent officials in the complaint. The Commission has also not recorded any finding in its recommendations that, the delinquent officials, namely, the Petitioners are either guilty of corruption, favouritism, nepotism or lack of integrity or the orders were passed for improper or corrupt motive. The findings recorded by the Commission do not bring the action of the Petitioners within the meaning of the expression 'allegations' as defined under Section 2(3) of the Act. In any case, the mis-interpretation of a statutory provision could not have been treated as a misconduct and it could not have been concluded in law by the Commission that, the Petitioners are liable for disciplinary action under Rule 30 of Rules.

Since the Respondents have failed to take an objection with regard to maintainability of the petitions at the time of admission and the writ petitions were admitted for hearing, in view of well settled legal proposition, the writ petitions are required to be dealt with on merits. The report submitted by the Commission is quashed. The writ petitions are allowed.

Relevant : Union of India and Others vs. K.K. Dhawan MANU/SC/0232/1993; Zunjarrao Bhikaji Nagarkar vs. U.O.I. and Others MANU/SC/0453/1999

Tags : REPORT   MISCONDUCT   VALIDITY  

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