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Judgment
By his order dated February 21, 1956 the Tehsildar Jammu, respondent No. 3 herein, directed the issue of a certificate of permanent
residentship in favour of Shri Sharma, respondent No. 4 herein. The petitioner agitated the matter in revision before the Government. The revision
was disposed of by the Revenue Minister, respondent No. 2 herein, who, by his order dated December 17, 1957 remanded the matter for fresh
enquiry to Tehsildar Jammu; upon fresh enquiry the Tehsildar Jammu, by his order dated 2041960, again directed issue of permanent residentship
certificate in favour of respondent No. 4. The petitioner again went in revision to the Government. By Government order No. VA3 of 1973 dated
3.4.1973 the revision was again dismissed by the Revenue Minister acting on behalf of the Government. The petitioner has now filed this writ
petition and challenged the order.
The principal plea raised in the petition is that the impugned order is violative of the principles of natural justice. Dwelling on this plea the
petitioner has averred on affidavit that his counsel, S. Pritam Singh, Vakil, was inform that the date of hearing fixed in the revision was 31.3.1973
and when on that date the counsel went to argue the matter before the Revenue Minister, he was told by the concerned Secretary that the case had
already been decided and the orders would be conveyed to the parties in due course. But actually, he adds, the impugned order was subsequently
passed on 3.3.1973 behind the back of the petitioner. The respondents have vaguely stated in reply that the petitioner had wilfully absented himself
on the date fixed in the case. That reply too has not been verified much less supported by any counter affidavit. Accordingly the allegations made
by the petitioner on oath must be treated as uncontroverted. On these allegations it is clear that the impugned order was made behind the back of
the petitioner who was neither served nor had otherwise any notice of the hearing fixed on 3.4.1973 when the order was made. I might even add
that the case was to taken up at random on the said date as, according to the impugned order, the other side too was absent. In that view the
impugned order is clearly violative of the principles of natural justice.
Even so, argued Mr. Anil Dev Singh, appearing for the Revenue Minister, this court ought not to interfere by making the rule absolute for
certiorari. Because, the grant of permanent residentship certificate to respondent No. 4, as he put it, does not invade any personal or particular
right of the petitioner to entitle him to ask the court to exercise its discretion as to the granting of a writ certiorari. In other words, his argument is
that the petitioner has no personal or private interest in the subject matter to entitle the petitioner to apply for certiorari. In this Mr. Anil seem to
assume that the petitioner has no interest of his own beyond some inconvenience suffered by him in common with the members of the public if the
law is not administered properly. The assumption is not correct. The petitioner has a particular interest in the subject matter and nothing can better
explain it than the fact that every permanent resident of the State has unquestionably certain special rights and privileges available to him, for
instance, the right to acquire immoveable property in the State, which are not available to the nonpermanent resident and, so, if person is admitted
to the category of the permanent residents of the State without title, it constitutes an invasion of those rights, threatened if not actual.
Assuming, however, that the petitioner has no particular interest in the subject matter in the sense explained above, he still has it in the sense that
he was entitled to appear and object to the grant of certificate to respondent No. 3, as he actually did, and so he is fully competent to apply for a
writ of certiorari. Lest there should be any misunderstanding, I want to make it clear that he could apply for certiorari even without having
participated in the proceedings for the grant of the certificate, if he had the right to appear and object to the grant of certificate, as he really had.
The grant of permanent resident certificates is governed by the Jammu and Kashmir Grant of Permanent Resident Certificates Procedure Act,
1963 and the Rules framed thereunder. Rule 4 of the Rules framed under the Act gives right to any person to object to the grant of the certificate
by making a provision to the effect that the Tehsildar, Assistant Commissioner, and the competent Authority, as the case may be, ""may, if he
deems necessary, invite objections, if any, to the grant of certificate and hear the person or persons objecting"". More sweeping is Section 6 of the
Act itself which gives any person right to seek revision of any order passed on an application for grant of certificate, pending or disposed of, by a
competent authority.
That section reads :
The Government may at any time either on its own motion or on an application made to it in this behalf, call for the record of any case pending
before or disposed of by a competent authority and may uphold or reverse the orders of the competent authority or may pass any other orders or
give any directions as it may deem fit: Provided that no orders prejudicial to an interested person shall be passed without giving such a person a
reasonable opportunity to be heard.
If it appears to a competent authority that a substantial question of law or public interest is involved in any proceedings under this Act, it may
report it to the Government and the Government may pass any orders or issue any directions that it may deem fit.
This Section even suggests that the revision petitioner need not have objected to the passing of the order at the trial stage to entitle him to apply
under this section.
In Rex v. Richmond Confirming Authority; Howitt, Ex parte (1921) 1 K.B. 248 an application was made to the licensing Justices by Mr.
Taylor, the Assistant Secretary of L. and Co. for a licence for the sale of intoxicating liquor in respect of premises occupied by L. and Co. as a
restaurant. The application was opposed by Mr. Howitt, the licencee of other premises in the same borough, but was granted by the licensing
justices. Before the confirmation of the grant Mr. Taylor died. At the meeting of the Confirming Authority an application was made to confirm the
grant but to substitute in the licence the name of Mr. Booth, successorinoffice of Mr. Taylor as Secretary to L. and Co. This application was
opposed by Mr. Howitt on the ground that the confirming Authority had no jurisdiction to grant it but the application was nevertheless granted. Mr.
Howitt obtained a rule nisi for certiorari. L. and Co. in showing cause, took the point that even if it was held that the justices had acted in excess of
jurisdiction, the court ought not to interfere by making the rule absolute because the fact that applicant was rival licencee did not entitle him to the
writ as a person aggrieved. Dealing with the objection his Lordship, Reading C. J., observed:
The applicant does not, in my opinion, stand in the same category as a member of the public who may be said to have only a general interest in
seeing that the law is properly carried out. He had a particular interest in this subject matter, and nothing can better show this than the fact that he
incurred the expense of instructing counsel to secure, if he could, the refusal of the confirmation, and to contend that the confirming authority had no
jurisdiction. Bearing in mind that the applicant is a person who was entitled to appear and object as having this interest that he was carrying
business as the licensee of premises in Richmond, I think the case comes within the decision of Rex v.
Groom, Ex parte Gobbold ( (1901) 2 K. B. 157). There the very point was taken that the rule for certiorari to quash an order of the licensing
justices had been obtained by rivals in trade and that, as such, they were not persons aggrieved. On the other side it was contended that they were
persons aggrieved as persons who had an interest in the matter of the application for the licence and therefore entitled to the writ of certiorari. Lord
Alverstone C. J. indicated that if he could have decided the case merely on the grounds of sympathy there was not much merit in the application he
would have held that the Court ought not to make the rule absolute, but he said this:
As to the question whether the applications for the rule are persons aggrieved, there can be no doubt that they have no real grievance arising from
the omission to serve the notice in time. That, however, is not the sense in which persons applying for a certiorari are required to be persons
aggrieved. It is sufficient if they have a real interest in the decision of the justices, and they have in this case. They took the point now raised before
the justices at the adjourned general annual licensing meeting and when the confirming order was made, and it would be too strong to say that they
had not a sufficient interest in the matter to enable them to apply for the rule.
Clearly the decision is an authority for the principle that any person who is entitled to appear and object to the making of any order by an
authority is entitled to move for the issue of a writ of certiorari in the matter. Thus the decision supports the view expressed above. It was on this
principle that in case Issardas Somamal Lulla v. The Collector of Madras and Additional Custodian of Evacuee Property, Madras, (AIR 1959
Mad 528) the Madras High Court issued a writ of certiorari at the instance of a person who, though assumed to have no right in the subject matter
viz. import and export quota, was held entitled to apply for certiorari for quashing an order which he had objected to before the appropriate
authority.
For these reasons the impugned order must be set aside, and the matter referred back to the Government for fresh decision in accordance with
law. In that view it will not be necessary to go into the additional ground taken by the petitioner that the impugned order was perverse in the sense
that it was based on no evidence as that aspect can be looked into by the Government while rehearing the matter in revision.
In the result the petition is allowed; the impugned order is set aside: and, it is directed that the Government will rehear the revision and pass
appropriate orders in accordance with law. The parties will bear their own costs.