Absence of Jurisdictional Fact of Application of Mind in the Reference

This research note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India.

  1. The Referring Authority is required to show the application of mind to the facts and law before him, and then record his satisfaction based on the materials collected by the Investigating Officer before forwarding a reference to the Tribunal.
  • State of Assam v. Moslem Mandal reported in (2013) 3 GLR 402 at para 98 [Full Bench]

[97] The reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee.”.

  1. Meaning of Application of Mind:
  • Application of mind is not defined in any case but has been applied in various contexts where an authority is given discretionary powers and it has been held that the power is to be exercised by application of mind to the facts and circumstances of the case in hand.
  • When discretion is conferred on an authority, it must personally exercise the same; it must apply its own mind to the facts and circumstances of each case and come to its own decision. If the authority acts without applying its mind to the case before it, then the action or decision taken by it will be without jurisdiction because it has not exercised its discretion in accordance with the law.
  • In accordance with State of Assam v. Moslem Mandal reported in (2013) 3 GLR 402 at para 98, along with the case file, the referring authority must forward their observations recording their satisfaction in such manner that demonstrates their application of mind to the facts and circumstances of the case. The absence of such reasons must be held to vitiate the entire proceeding before the Foreigners’ Tribunal.
  • The non-application of mind is even more relevant in ex parte cases where the opinion of the Foreigners’ Tribunal is based entirely on the main grounds along with the supporting materials forwarded with the reference.
  1. Facets to demonstrate the application of mind:
  • Material facts of the case should be taken into consideration:

In the case of Satpal v. State of Haryana (AIR 2000 SC 1702), in the context of the pardoning powers of the Governor under Article 161 of the Constitution, the Supreme Court held that the decision-making authority must be apprised of the materials facts in the case to demonstrate proper application of mind.

  • The authority should be personally satisfied:

The appropriate authority must be personally satisfied as to the grounds on the basis of which the decision is taken. For example, in the case of Jaganath v. State of Orissa (AIR 1966 SC 1140), an order of detention under rule 30(1) (b) of the Defence of India Rules was challenged on the ground that it was as not based upon the satisfaction of the Government. The Supreme Court observed that in the order of detention, six grounds were verbatim reproduced from the relevant empowering section, whereas the affidavit of the Minister who issued the order indicated that he was “personally satisfied” of only two out of the six grounds mentioned in the order. The Supreme Court ruled that the Minister had acted mechanically in passing the order and quashed the order of detention.

  • Application of mind must be apparent from the order itself:

In the context of the issuance of summons on a private criminal complaint, the Supreme Court in Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others ((1998) 5 SCC 749), has held that application of mind has to be indicated by disclosure of mind on the satisfaction. The Magistrate is not to act as a post office in taking cognizance of the complaint. There must be sufficient indication in the order as to the application of mind. Similarly, in Birla Corporation Limited v. Adventz Investments and Holdings Ltd. & Another (AIR 2019 SC 2390), the Supreme Court has held that application of mind has to be indicated by disclosure of mind on satisfaction, through a reasoned order (though not elaborately reasoned). To give reasoned decisions is a requirement of natural justice and the order must show which particular circumstance received due consideration while arriving at the decision [State (Delhi Administration) vs Anil Puri And Ors. 28 (1985) DLT 474, para 10]

  • Application of mind must be prima facie through the reasons recorded:

As per Section 147 of the Income Tax Act, 1961, the Income Tax Department has the power to reassess an individual’s previously filed income tax returns by sending a notice under section 148 of the Income Tax Act, 1961 along with recording one’s satisfaction that the income has escaped assessment. In Joint Commissioner of Income-Tax v. George Williamson (Assam) Ltd. (2002 SCC OnLine Gau 351; (2002) 258 ITR 126; (2003) 181 CTR 69), a Division Bench of the Gauhati High Court held that in the absence of specific material before the assessing authority and any independent enquiry, there did not appear to be a link between the facts found and the satisfaction arrived at by the assessing authority. It was accordingly held that there was no application of mind to the facts alleged to have been found, and the action taken was quashed as being not maintainable in law. Similarly, in the case of Pr. CIT vs. G & G Pharma India Ltd. ((2016) 384 ITR 147 (Del.)), the Delhi High Court held that application of mind by the Assessing Officer to the material produced before issuing the notice for reassessment was a basic jurisdictional requirement for reassessment. Without analysing and forming a prima facie opinion on the basis of the material produced, it was not possible for the Assessing Officer to conclude that he had reason to believe that income had escaped assessment. For other High Courts, see Yuvraj v. Union of India ((2009) 315 ITR 84) [Bombay High Court Division Bench]; Kamala Properties v. Inspecting Assistant Commissioner of Income Tax, Special Range-IV Calcutta (1992 SCC OnLine Cal 124; (1992) 2 CHN 295) [Calcutta High Court Single Judge].

  • Non-application of mind is a jurisdictional error and would result in vitiation of the proceedings:

In Anirudhsinhji Karansinhji Jadeja v. State of Gujarat ((1995) 5 SCC 302), a three-judge bench of the Supreme Court quashed proceedings initiated under the TADA for the reason that the sanction granted by the State Government for the prosecution was without the proper application of mind. It observed that the State Government merely followed the advice of the Deputy Superintendent of Police without any independent application of mind to the facts and held as follows:

[14] The present was thus a clear case of exercise of power on the basis of external dictation. That the dictation came on the prayer of the DSP will not make any difference to the principle. The DSP did not exercise the jurisdiction vested in him by the statute and did not grant approval to the recording of the information under TADA in the exercise of his discretion.

[15] The aforesaid is however not all. Even if it be accepted that as an additional safeguard against the arbitrary exercise of the drastic provisions, the State Government had provided by administrative instructions an additional safeguard whereunder the DSP was required to obtain the sanction/consent of the State Government, we are of the view that in the present case the same was given by the State Government without proper application of mind. We have taken this view because the sanction/consent was given by the Government merely on the basis of the fax message dated 17-3-1995 of the DSP. The reason for our saying so is that though there is no record a fax message of Deputy Director General of Police also, which is dated 18-3-1995, the sanction/consent order has mentioned above the fax message of the DSP only. Now, no doubt the message of the DSP is quite exhaustive, as would appear from that message which has been quoted above in full, we are inclined to think that before agreeing to the use of harsh provisions of TADA against the appellants, the Government ought to have taken some steps to satisfy itself whether what had been stated by the DSP was borne out by the records, which apparently had not been called for in the present case, as the sanction/consent was given post-haste on 18-3-1995, i.e., the very next day of the message of the DSP… The State Government gave the sanction without even discussing the matter with the investigating officer and without assessing the situation independently. All these show lack of proper and due application of mind by the State Government while giving sanction/consent.

[16] For the aforesaid twin reasons, we state that the entire proceeding against the appellants under TADA is vitiated and the same is, therefore, quashed.”

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