Order By Govt. Secretary Cannot Be Recalled Without Fraud Or Misrepresentation: Allahabad High Court

The Allahabad High Court has held that an order passed by the Secretary on behalf of the State Government cannot be recalled unless it suffers from misrepresentation, fraud, or is without legal authority.

A Bench of Justice Ajit Kumar and Justice Swarupama Chaturvedi observed:

“In our considered view an order if does not suffer from any misrepresentation or fraud or an order is not bad for want of authority of law, it is to be taken as genuine order passed after due application of mind and hence such order cannot be permitted to be recalled.”

The petitioner, Mushtaq Ahmad, was granted a fisheries lease for Dhandhraul reservoir and deposited 25% of the lease amount. He did not pay the balance, citing inability to fish the expected quantity due to the actions of those managing the dam. The matter involved disputed questions of fact, and an arbitrator was initially appointed.

After the arbitrator was transferred, an Arbitration Committee was constituted, which concluded that “…there was no loss to the State department and it was the department's duty to ensure that there was enough water so that the fishes do not slip away… the department must waive the recovery in lieu of losses suffered by the petitioner.”

On 16 March 2017, the State Government issued a detailed order waiving the recovery. However, on 30 June 2017, it recalled the order, stating that:

“…upon re-examination of the Arbitration Committee's report, it was found that there was no proper appreciation of evidence.”

The petitioner challenged the recall before the writ Court. The Court noted that:

“If the Chief Secretary or the Special Secretary is taken to be higher authority, then it amounted to an appeal sitting over and above the order of the Under-Secretary which in our considered view may be a gross indiscipline for want of statutory provision may invite disciplinary action. Power of review cannot be, therefore, available, but power to recall would of course, be available provided, it is brought to the notice of the authority that earlier the order was obtained by fraud/misrepresentation or of course, in the event order was without authority of law.”

The Court further held that the Arbitration Committee's observations were never challenged by the State and could only have been assailed under Section 34 of the Arbitration and Conciliation Act, 1996, which the State had not done. It noted that:

“…without challenge under Section 34 of the Arbitration Act, the State was bound to accept the recommendations of the Committee.”

The Bench noted that since there was no finding of fraud or misrepresentation, the Secretary's attempt to recall the order was impermissible.

Accordingly, it allowed the petition and quashed the order seeking recovery of dues from the petitioner.

Counsel for Petitioner(s): Alok Singh, Ramendra Pratap Singh

Counsel for Respondent(s): C.S.C.