Himachal Pradesh High Court
Reserved On : 10.9.2015 vs Savitri Devi on 14 October, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
.
CMPMO No. 51 of 2014
Reserved on : 10.9.2015
Date of Decision : October 14 , 2015
Municipal Corporation Shimla
of
through its Commissioner ... Petitioner
Versus
Savitri Devi
rt ... Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? Yes. 1
For the petitioner : Mr. Hamender Chandel, Advocate, for the
petitioner.
For the respondent : Mr. G. D. Verma, Sr. Advocate, with Mr. B. C.
Verma, Advocate, for the respondent.
Sanjay Karol, J.
What is the nature of authority exercised by the Commissioner under the provisions of Section 253 of the Himachal Pradesh Municipal Corporation Act, 1994 (hereinafter referred to as the "Act")? Is it ministerial or Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 2quasi judicial? Is he bound to comply with the principles of natural justice? If yes, then to what extent? Do the .
provisions of the Indian Evidence Act, 1872 (hereinafter referred to as the "Evidence Act") apply to such proceedings conducted by him? Whether in such proceedings report submitted by an official of the of Corporation (Junior Engineer) is per se admissible in law or can be looked into? Whether under all circumstances, in rt such proceedings, a party would have a right to adduce evidence or cross-examine a person. All these issues require consideration by this court.
2. In exercise of its powers under Section 253 of the Act, Commissioner Municipal Corporation Shimla (hereinafter referred to as the Commissioner), issued notice dated 15.1.2010/23.2.2010, calling upon Savitri Devi (hereinafter referred to as the respondent) to show cause as to why unauthorized construction of 41.202 Sq. Mts., raised by her on the ground floor of the premises owned by her, be not demolished. Also as to why unauthorized commercial use thereof, be not stopped.
::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 33. While acknowledging receipt of the notice, respondent filed response stating that the construction .
raised was strictly in accordance with the plan sanctioned by the Shimla Municipal Corporation (hereinafter referred to as the Corporation). With the completion of construction in the year 1978-79 itself, shops on the ground floor were put of to commercial use. All construction raised was not only subjected to municipal tax but even water and electricity rt stood supplied, thus implying the construction to be fully authorized.
4. In such proceedings, on 2.7.2011, Commissioner directed the concerned Junior Engineer (J.E.) to consider the response and submit status report. Needful having been done, on 20.8.2011, Commissioner passed the following order:
"Case called. Present AP, JE for the MC Shimla & Mr. Kuldeep Kumar on behalf of the respondent Mrs. Savtri Devi. As per report of the JE, the respondent has been sanctioned two storied structure with following measurements vide Executive order No. 245 dated 28.7.1975 issued by the Executive Officer, MC, Shimla.:-::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 4
i) basement floor 7.31 x 4.57
ii) ground floor 7.31 x 4.57.
.
As against this area the respondent has constructed basement floor measuring 10.25 x 3.00. As per report of the JE this area was approved only for residential and not for commercial activities. The respondent is of currently using these premises for commercial purposes i.e. shops etc. From the aforesaid facts, it is clear that the rt respondent has deviated from the sanctioned plan. It is therefore, ordered that the respondent will bring the construction to the sanctioned plan and revised drawings be submitted within six weeks for approval. The case to come up on 22.10.2011."
[emphasis supplied]
5. Record reveals that thereafter neither did the respondent comply with the order nor did she participate in the proceedings and as such on 4.2.2012, Commissioner passed the following order:
"Case called, Present JE Mr. Mohan Thakur for the MC Shimla and none for the respondent Mrs. Savitri Devi, despite service of the summon on her son. In compliance to the orders dated 20.8.2011, the JE states that construction has not been carried out as per approved plan and shops ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 5 have been constructed and deviated from the approved plan, which indicates that land use has .
been changed without approval of the competent authority. The reply submitted by the respondent has been considered. The respondent has failed to prove that these three shops are constructed with the approval of the competent authority.
of Therefore, respondent is directed to remove/demolish these unauthorized shops measuring 41.202 sq. mts. as mentioned in the rt notice 88 dated 23.2.2010 within a period of four weeks, failing which the same shall be removed by MC, Shimla at the risk, cost and responsibility of the respondent. JE to submit compliance report on the next date of hearing. The case to come up on 07.04.2012."
[Emphasis supplied]
6. Subsequently he directed compliance of his order dated 04.02.2012.
7. Primarily on the ground that report of the J.E. stood prepared behind her back, respondent assailed the order dated 4.2.2012 by filing a statutory appeal, under the provisions of Section 253 (2) of the Act.
8. Vide impugned order dated 28.12.2013, passed by the Appellate Authority, in Civil Misc. Appeal No. 60-S/14 of 13/12, titled as Smt. Savitri Devi Versus Municipal ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 6 corporation, Shimla through its Commissioner, appeal stands allowed, holding that: (a) Report submitted by the .
J.E. was not "per se admissible", hence could not have been relied upon as "evidence", without recording the "statement of the J.E." "on oath"; (b) Opportunity of cross-examination ought to have been afforded to the aggrieved party;
of
(c) Impliedly, word "reasonable opportunity" so used in Section 253 of the Act would include right of cross-
rt examination and right to adduce evidence in defence; (d) In deciding the case, Commissioner committed procedural illegality.
9. As such while quashing order dated 04.02.2012, matter was remanded back to the Commissioner with further directions to record the statements of the Assistant Planner and the J.E. on oath; after affording opportunity of cross-examination and adducing evidence to the parties, decide the case afresh.
10. The correctness of such findings is subject matter of consideration in this petition filed under Article 227 of the Constitution of India.
::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 711. Careful perusal of the Act reveals that the concept of compliance of principles of natural .
justice/hearing is itself provided for under the Statute.
However, provisions of procedure provided under the Code of Civil Procedure are made applicable only for the conduct of trial and disposal of election petitions or appeals filed of before the District Judge, under the Act (Sections 17 and
379). Specifically provisions of the Evidence Act are not rt made applicable.
12. Chapter II of the Act deals with the Constitution of the Corporation.
13. Taxes and fee are imposed and collected under the provisions of Chapter VIII of the Act. Section 84 empowers the Corporation to levy taxes on buildings and lands and other taxes on such rates as may be notified by the State Government. However, no other tax can be imposed unless an "opportunity", in the prescribed manner, is afforded to the residents of the municipal area/affected parties for filing objections. The assessment list is prepared, which is deemed to be conclusive evidence, under Section 95 of the Act and can be amended only after ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 8 affording "opportunity" to "persons who are likely to be affected". Section 99 mandates a person primarily liable to .
pay taxes to give notice to the Commissioner, after completion of construction of building.
14. Chapter XII deals with the supply of water, drainage and sewage disposal to the buildings constructed of in the municipal area.
15. Chapter XIII deals with the management and rt functioning of the streets falling within the limits of municipal area. Only after affording "reasonable opportunity" to the residents likely to be affected and considering their objections, Commissioner is empowered to permanently close, whole or part of the public street.
16. Chapter XIV deals with the regulation of construction of building within the municipal area. Section 242 prohibits erection of any building except in accordance with the provisions of the Act and bye-laws framed thereunder. Person intending to erect a building, by virtue of provisions of Section 243, has to comply and obtain necessary sanctions. After affording "reasonable opportunity" to the person affected, Commissioner is ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 9 empowered to cancel such sanction on the ground of fraud/misrepresentation. He is also empowered to pass .
orders of demolition of unauthorized building/construction, but only after affording "reasonable opportunity" of showing cause. Such power emanates from the following Section, which is reproduced in its entirety, as is necessary for of adjudication of the issues arising in the present appeal:-
"253. Order of demolition and stoppage of building rt and works in certain cases and appeal.--(1) where the erection of any work has been commenced, or is being carried on or has been completed without or contrary to the sanction referred to in section 246 or in contravention of any condition subject to which such sanction has been accorded or in contravention of the provisions of this Act or bye-laws made thereunder, the Commissioner may in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed within such period (not being less than seven days from the date on which a copy of the order of demolition with a brief statement of the reasons therefor has been delivered to that person) as may be specified in the order of demolition:
Provided that no order of demolition shall be made unless the person has been given, by means of ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 10 a notice served in such manner as the Commissioner may think fit, a reasonable opportunity of showing .
cause why such order should not be made:
Provided further that where the erection or work has not been completed, the Commissioner may be the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct the of person to stop the erection or work until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub- rt section (2).
(2) Any person aggrieved by an order of the Commissioner made under sub-section (1) may prefer an appeal against the order to District Judge of the municipal area within the period specified in the order for the demolition of the erection or work to which it relates.
(3) Where an appeal is preferred under sub-section (2) against an order of demolition, the District Judge may stay the enforcement of that order on such terms if any, and for such period, as it may think fit:
Provided that where the erection of any building or execution of any work has not been completed at the time of the making of the order of demolition, no order staying the enforcement of the order of demolition shall be made by the District Judge, unless reasonable opportunity of being heard is afforded to the Commissioner and security sufficient in the opinion of the District Judge, has been furnished given by the appellant for not ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 11 proceeding with such erection or work pending the disposal of the appeal.
.
(4) Save as provided in this section no court shall entertain any suit, application or other proceedings for injunction or other relief against the Commissioner or restrain him from taking any action or making any order in pursuance of the provisions of this section.
of (5) Every order made by the District Judge on appeal and subject only to such order, the order of demolition made by the Commissioner shall be final rt and conclusive.
(6) Where no appeal has been preferred against an order of demolition made by the Commissioner under sub-section (1) or where an order of demolition made by the Commissioner under the sub-section has been confirmed on appeal, whether with or without variation, the person against whom the order has been made shall comply with the order within the period specified therein or, as the case may be, within the period, if any, fixed by the District Judge on appeal, and on the failure of the person to comply with the order within such period, the Commissioner may himself cause the erection of the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act."
[Emphasis supplied]
17. Chapter XXI empowers the Commissioner to issue, suspend or revoke licenses or written permissions ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 12 accorded under the Act. Noticeably no order of suspension or revocation can be passed without affording "reasonable .
opportunity" to the aggrieved party.
18. It is thus seen that for compliance of provisions of Natural Justice, Act uses different expressions at different places:
of
(i) "Opportunity" : Provided "in the prescribed manner to the residents" or the affected parties to file objections. (Section 84).
rt
(ii) "Opportunity of being heard" (Section 94)
(iii) Provide notice "to any person affected"
(Section 96)
(iv) Give the owner or occupier "written notice"
(Section 177).
(v) Give the owner "reasonable opportunity of showing cause". (Section 200)
(vi) Give "reasonable opportunity to the residents likely to be affected" (Section 209)
(vii) "Shall give reasonable opportunity to the person affected" (Section 248)
(viii) Give "reasonable opportunity of showing cause" (Section 253)
(ix) Give "reasonable opportunity to show cause" (Section 356)
19. Having dealt with the statutory provisions, one proceeds to examine the law on the relevant issues.
::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 13Does the Commissioner function as a Court or a Tribunal .
20. In Virindar Kumar Satyawadi vs. State of Punjab, AIR 1956 SC 153 (Three Judges), the Court has made broad distinction between a Court and a quasi judicial Tribunal.
21. The Court in Thakur Jugal Kishore Sinha Vs. of Sitamarhi Central Coop. Bank Ltd., AIR 1967 SC 1494 (Two Judges), has upheld the following test for determining as to rt whether the authority constituted under a particular Act is exercising judicial or quasi judicial powers as a Court or not:
"(i) the dispute [which is to be decided by him] must be in the nature of a civil suit;
(ii) the procedure for determination of such a dispute must be a judicial procedure; and
(iii) the decision must be a binding one."
22. Relying upon Associated Cement Companies Ltd.
vs. P.N. Sharma & anr., AIR 1965 SC 1595 (Five Judges), the Court in Union of India vs. R.Gandhi, President, Madras Bar Association, (2010) 11 SCC 1 (Five Judges), held that:-
"The term 'Courts' refers to places where justice is administered or refers to Judges who exercise judicial functions. Courts are established by the state for administration of justice that is for exercise of the judicial power of the state to maintain and uphold the rights, to punish wrongs and to adjudicate upon ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 14 disputes. Tribunals on the other hand are special alternative institutional mechanisms, usually brought .
into existence by or under a statute to decide disputes arising with reference to that particular statute, or to determine controversies arising out of any administrative law." ... ...
... ... "...Though both Courts and Tribunals exercise judicial power and discharge similar of functions, there are certain well-recognised differences between courts and Tribunals. They are:
(i) Courts are established by the State and are rt entrusted with the State's inherent judicial power for administration of justice in general. Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature. Therefore, all courts are Tribunals.
But all Tribunals are not courts.
(ii) Courts are exclusively manned by Judges.
Tribunals can have a Judge as the sole member, or can have a combination of a Judicial Member and a Technical Member who is an 'expert' in the field to which Tribunal relates. Some highly specialized fact finding Tribunals may have only Technical Members, but they are rare and are exceptions."
23. With the aforesaid guiding principles, it cannot be said that in exercise of his power under Section 253 of the Act, Commissioner is functioning as a Court.
::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 15Are the provisions of the Evidence Act applicable, to all proceedings conducted by the Commissioner.
.
24. The word "Court" defined under the Indian Evidence Act includes Judges, Magistrates and all persons except Arbitrators, legally authorized to take Evidence. A person can be cross-examined (under Chapter X) only if he of is called as a witness and examined.
25. Evidence Act has no application to inquiries rt conducted by the Tribunal even though they may be judicial in character has been so held by the Constitution Bench in Union of India Versus T.R. Varma, AIR 1957 SC 882 (Five Judges).
26. Also inquiry held by an Administrative Tribunal is not governed by the strict and technical rules of the Evidence Act. [The State of Orissa and another Versus Murlidhar Jena, AIR 1963 SC 404 (Five Judges)].
27. In Maharashtra State Board of Secondary and Higher Secondary Education Versus K.S. Gandhi and others, (1991) 2 SCC 716 (Two Judges), the Court held that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 16 authorities to receive and place on record all necessary, relevant, cogent and acceptable material facts though not .
proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. Therefore, when an inference of proof that a fact in dispute has been held established, there must be some of material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not rt proof beyond reasonable doubt "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a strait-jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is same both in civil cases and domestic enquiries.
Similar view was taken in State of Haryana and another vs. Rattan Singh, (1977) 2 SCC 491 (Three Judges).
28. Even while dealing with the provisions of the Industrial Disputes Act, the Court in Essen Deinki Vs. Rajiv Kumar, (2002) 8 SCC 400 (Two Judges) has held that the provisions of the Evidence Act per se are not applicable in ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 17 an Industrial adjudication. But however general principles would be applicable and it would be imperative upon the .
Industrial Tribunal to ensure that principles of natural justice are complied with. The view stands reiterated in Manager, Reserve Bank of India, Bangalore vs. S. Mani and others, (2005) 5 SCC 100 (Three Judges).
of
29. The office of the Commissioner does not fall within the definition of a Court. As already observed, neither rt the provisions of the Code of Civil Procedure, nor the Evidence Act are made specifically applicable to the proceedings before the Commissioner. Hence it is only the material placed by the parties, based on the principles of preponderance of probability, which is required to be considered and appreciated.
Does the Commissioner exercise Administrative or Judicial or quasi judicial function:
30. Whether or not an administrative body or authority functions as purely administrative one or in a quasi judicial capacity, has to be determined in each case on an examination of the relevant statues and rules framed thereunder.
::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 1831. In Nagendra Nath Bora & another vs. Commissioner of Hills Division and Appeals, Assam & .
others, AIR 1958 SC 398 (Five Judges) the power exercised by the authority under Section 9 of the Eastern Bengal and Assam Excise Act, 1910, was held to be judicial in nature and not administrative.
of
32. Whether an Administrative Tribunal has a duty to act judicially or not, and whether Secretary Incharge of rt transport department was discharging functions as such, came up for consideration before the Constitution Bench in Gullapalli Nageswara Rao & others vs. Andhra Pradesh, State Road Transport Corporation & another, AIR 1959 SC 308 (Five Judges). The Court was dealing with a case where the Motor Vehicles Act, 1939, imposed a duty upon the Tribunal to decide as to whether certain persons were to be excluded from the routes upon which the vehicles were to be plied under the provisions of the Motor Vehicles Act and the Rules framed thereunder. The Court held that if the authority is called upon to decide the rights of the contesting parties, a duty is cast upon the Tribunal to act judicially.
::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 1933. In A. K. Kraipak & others vs. Union of India & others, (1969) 2 SCC 262 (Five Judges), the Court held that .
dividing line between an administrative power and quasi-
judicial power, which is quite thin, is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to of look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law rt conferring that power, the consequences resulting from the exercise of that power and the manner in which that power is expected to be exercised.
34. In Smt. Saraswati Devi & others vs. State of Uttar Pradesh & others, (1980) 4 SCC 738 (Five Judges) the Constitution Bench again had an opportunity of dealing with the scope of the powers to be exercised by the State Government under the provisions of the Motor Vehicles Act, 1939. Sections 68-C and 68-D empowered the State Government to modify the scheme, affecting rights of a private party. The Act provided opportunity of hearing to the parties, particularly whose rights were likely to be ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 20 affected. The Court reiterated the principles laid down in Gullapalli (Supra).
.
35. Lately in State of Maharashtra & others vs. Saeed Sohail Sheikh & others, (2012) 13 SCC 192 (Two Judges), Court was called upon to decide as to whether the nature of the power exercised in transferring the undertrial of from one to another prison was ministerial or judicial/quasi judicial in nature. While referring to its earlier decisions rt rendered in Province of Bombay vs. Khushaldas S. Advani, AIR 1950 SC 222; R. vs. Dublin Corpn. (1978 2 LR Ir 371;
Frome United Breweries Co. Ltd. vs. Bath JJ, 1926 AC 586:
1926 All ER Rep 576 (HL); State of Orissa vs. Binapani Dei, AIR 1967 SC 1269; A. K. Kraipak (supra); Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405, Hon'ble Mr. Justice T. S. Thakur, J., speaking for the Bench, held that:
"27. Prof. De Smith in his book on 'Judicial Review' (Thomson Sweet & Maxwell, 6th Edn. 2007) refers to the meaning given by Courts to the terms 'judicial', 'quasi-judicial', 'administrative', 'legislative' and 'ministerial' for administrative law purposes and found them to be inconsistent. According to the author 'ministerial' as a technical legal term has no single fixed meaning. It may describe any duty the ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 21 discharge whereof requires no element of discretion or independent judgment. It may often be used more .
narrowly to describe the issue of a formal instruction, in consequence of a prior determination which may or may not be of a judicial character. Execution of any such instructions by an inferior officer sometimes called ministerial officer may also be treated as a ministerial function. It is sometimes loosely used to of describe an act that is neither judicial nor legislative. In that sense the term is used interchangeably with 'executive' or 'administrative'. The tests which, rt according to Prof. De Smith delineate functions', could be varied some of which may lead 'judicial to the conclusion that certain functions discharged by the Courts are not judicial such as award of costs, award of sentence to prisoners, removal of trustees and arbitrators, grant of divorce to petitioners who are themselves guilty of adultery etc. We need not delve deep into all these aspects in the present case.
We say so because pronouncements of this Court have over the past decades made a distinction between quasi-judicial function on the one hand and administrative or ministerial duties on the other which distinctions give a clear enough indication and insight into what constitutes ministerial function in contra- distinction to what would amount to judicial or quasi-judicial function."
... .... ...
"34. Recently this Court in Jamal Uddin Ahmad v. Abu Saleh Najmuddin (2003) 4 SCC 257 dealt with the nature of distinction between judicial or ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 22 ministerial functions in the following words: (SCC p. 270, para 14) .
"14. The judicial function entrusted to a Judge is inalienable and differs from an administrative or ministerial function which can be delegated or performance whereof may be secured through authorization.
'The judicial function consists in the interpretation of the law and its application by rule or discretion to the facts of particular cases. This involves of the ascertainment of facts in dispute according to the law of evidence. The organs which the State sets up to exercise the judicial function are called courts of law or courts of justice. rt Administration consists of the operations, whatever their intrinsic nature may be, which are performed by administrators; and administrators are all State officials who are neither legislators nor judges.' (See Constitutional and Administrative Law, Phillips and Jackson, 6th Edn., p. 13.) P. Ramanatha Aiyar's Law Lexicon defines judicial function as the doing of something in the nature of or in the course of an action in court. (p. 1015) The distinction between "judicial"
and "ministerial acts" is:
If a Judge dealing with a particular matter has to exercise his discretion in arriving at a decision, he is acting judicially; if on the other hand, he is merely required to do a particular act and is precluded from entering into the merits of the matter, he is said to be acting ministerially. (pp. 1013-14).
Judicial function is exercised under legal authority to decide on the disputes, after hearing the parties, maybe after making an enquiry, and the decision affects the rights and obligations of the parties. There is a duty to act judicially. The Judge may construe the law and apply it to a particular state of facts presented for the determination of the controversy. A ministerial act, on the other hand, may be ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 23 defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, .
without regard to, or the exercise of, his own judgment upon the propriety of the act done. (Law Lexicon, ibid., p. 1234). In ministerial duty nothing is left to discretion; it is a simple, definite duty.""
[Emphasis supplied]
36. In Godrej & Boyce Manufacturing Company Ltd.
of & another vs. State of Maharashtra & others, (2014) 3 SCC 430 (Three Judges), Hon'ble Mr. Justice Madan B. Lokur, J., rt speaking for the Bench, has also observed that the first rule of interpretation being that words in a statute must be interpreted literally. However at the same time, if the context in which a word is used and the provisions of a statute inexorably suggests a subtext other than literal, then the context becomes important.
In B.A. Linga Reddy & others vs. Karnataka State
37. Transport Authority & othrs, (2015) 4 SCC 515 (Two Judges), Hon'ble Mr. Justice Arun Mishra, J. speaking for the Bench reiterated the principle that the power exercised by the authority in modifying the scheme under the Motor Vehicles Act is quasi judicial in nature mandating the authority to assign reasons and pass a speaking order. This alone would exclude arbitrariness in an action.
::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 2438. Ex-proprietary legislation, which deprives a person of his right of property, has to be strictly construed.
.
39. In instant case the Commissioner is required to apply his mind and return a positive finding affecting rights of parties. Such rights of the parties, so enshrined under the Constitution, can be adversely affected with the exercise of of such powers. Any adverse order may entail civil consequences.rt Hence the power exercised by the Commissioner can be said to be quasi judicial and not administrative/ministerial.
Principle of Natural Justice, its facets and obligation of the Commissioner to comply with the same:
40. What is "natural justice" and what is the extent of hearing which is required to be afforded to an aggrieved party is now well settled
41. It is a settled principle of law that principle of natural justice would take colour from the context of its statutory provisions under which the issue is required to be adjudicated. [The New Prakash Transport Co. Ltd. vs. The New Suwarna Transport Co. Ltd., AIR 1957 SC 232 (Five Judges). Also Haryana Financial Corporation & another vs. Kailash Chandra Ahuja, (2008) 9 SCC 31 (Two Judges)] ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 25
42. In Nagendra Nath Bora (supra) the court observed that:-
.
"17. ... ... this Court has laid down that the rules of natural justice vary with the varying constitution of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been of contravened, should be decided not under any pre- conceived notions, but in the light of the statutory rules and provisions. In the instant case, no such rt rules have been brought to our notice, which could be said to have been contravened by the Appellate Authority. Simply because it viewed a case in a particular light which may not be acceptable to another independent tribunal, is no ground for interference either under Art. 226 or Art.227 of the Constitution."
(Emphasis supplied)
43. The question of applicability of audi alteram partem in the proceedings before the Tribunal has been inviting attention of the Courts in India. The rule that a party to whose prejudice any order is intended to be passed is entitled to hearing applies to judicial Tribunals and Bodies or persons invested with the authority to adjudicate upon the matters involving civil consequences. [Gullapalli (Supra)]. It is one of the fundamental rules of our ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 26 Constitutional set up that every citizen is protected against the exercise of arbitrary authority by the State or its .
officers. Duty to act judicially would, therefore, arise from the very nature of the functions intended to be performed. If there is power to decide and determine the prejudice of a person, duty to act judicially is implicit in the exercise of of such power. This is the basic concept of rule of law.
44. While construing rt the meaning of expression "hearing and objections", under the provisions of Section 68-D of the Motor Vehicles Act, 1939, even where evidence could be produced and adduced, the Constitution Bench in Malik Ram vs. State of Rajasthan & others, AIR 1961 SC 1575 (Five Judges), held as under:
"7. We may however point out that the production of evidence (documentary or oral) does not mean that the parties can produce any amount of evidence they like and prolong the proceedings inordinately and the State Government when giving the hearing would be powerless to check this. We need only point out that though evidence may have to be taken under S. 68-D (2) it does not follow that the evidence would be necessary in every case. It will therefore be for the State Government, or as in this case the officer concerned, to decide in case any party desires to lead evidence whether firstly the evidence is ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 27 necessary and relevant to the inquiry before it. If it considers that evidence is necessary, it will give a .
reasonable opportunity to the party desiring to produce evidence to give evidence relevant to the enquiry and within reason and it would have all the powers of controlling the giving and the recording of evidence that any court has, Subject therefore to this overriding power of the State Government or the of officer giving the hearing, the parties are entitled to give evidence either documentary or oral during a hearing under S. 68-D(2)."
rt [Emphasis supplied]
45. In Union of India & another vs. P. K. Roy & others, AIR 1968 SC 850 (Five Judges), the Constitution Bench held that the extent and application of doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula. Application of the doctrine is dependent upon the nature of jurisdiction conferred on the administrative authority; the character of the rights of the persons affected; the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.
46. In A. K. Kraipak (Supra), the Court observed that rules of natural justice operate in areas not covered by any law validly made, that is, they do not supplant the law of ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 28 the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage .
of justice.
It further held that:-
"The concept of natural justice has undergone a great deal of change in recent years. What of particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework rt of the law under which the enquiry is held and the constitution of the Tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that enquiries must be held in good faith and without bias, and not arbitrarily or unreasonably, is now included among the principles of natural justice."
[Emphasis supplied]
47. In the Government of Mysore & others vs. J. V. Bhat & others, (1975) 1 SCC 110 (Three Judges), the Court further held that the nature of hearing, would vary according to the nature of functions, and what is a just and ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 29 fair, is required to be exercised in the context of rights affected.
.
48. In The Government of Mysore (Supra), the Court has held as under:-
"5. The audi alteram partem rule was held to be applicable by implication, to a case of deprivation of of a right in property in Daud Ahmed vs. District Magistrate Allahabad & others, (1972) 1 SCC 655, where this Court held (SCC para 12):
rt "It is the nature of the power and the circumstances and conditions under which it is exercised that will occasion the invocation of the principle of natural justice. Deprivation of property affects rights of a person. If under the Requisition Act the petitioner was to be deprived of the occupation of the premises the District Magistrate had to hold an enquiry in order to arrive at an opinion that there existed alternative accommodation for the petitioner or the District Magistrate was to provide alternative accommodation." "
49. A Constitution Bench has laid down in Krishna Swami vs. Union of India, (1992) 4 SCC 605 (Five Judges) that if a statutory or public authority/functionary does not record reasons, its decision would be rendered arbitrary, unfair, unjust and violative of Articles 14 and 21 of the Constitution. Reasons are links between the material, the foundation for their erection and the actual conclusions, demonstrative of the mind of the maker, activated and ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 30 actuated with the rational nexus and synthesis with the facts considered and the conclusions reached.
.
50. Significantly in Cantonment Board & another vs. Mohanlal & another, (1996) 2 SCC 23 (Two Judges), the Court was of the view that where the party admitted having breached the provisions of law qua the action sought to be of rectified, there was no question of applicability of provisions of principles of natural justice.
rt
51. While dealing with a case where the assessee himself had tampered and pilfered with the electricity connection, the Court in M. P. Electricity Board, Jabalpur & others vs. Harsh Wood Products & another, (1996) 4 SCC 522 (Two Judges) held non issuance of prior statutory notice for disconnecting the electricity supply by the authority not to be violative of Articles 20(1) & 14 of the Constitution of India or the principles of natural justice.
52. As to what is the meaning of the word 'natural justice", came up for consideration in Canara Bank vs. V. K. Awasthy, (2005) 6 SCC 321 (Two Judges), wherein disciplinary action taken against the employee was subject matter of challenge and the Court held that it is not easy to ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 31 determine the term principle of natural justice as it would contextually depend upon given fact situation. The Court .
held that natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man.
Natural justice is the administration of justice in a common-
of sense liberal way. Justice is based substantially on natural ideals and human values. It is the substance of justice which rt has to determine its form. The court further held that the principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. The intent being to prevent the authority from doing injustice. It observed that the concept of natural justice having undergone a great deal of change, such rules are not embodied, for they may be implied from the nature of duty to be performed under a statute.
53. What particular rule of natural justice should be implied and what its context should be in a given case must ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 32 depend to a great extent on the facts and circumstances of each case, the framework of the statute under which the .
enquiry is held. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil consequences"
encompasses infraction of not merely property or personal of rights but of civil liberties, material deprivations and non-
pecuniary damages. In its wide umbrella comes everything rt that affects a citizen in his civil life.
54. What is "fair hearing" stands deliberated in Natwar Singh vs. Director of Enforcement and another, (2010) 13 SCC 255 (Two Judges) in the following terms:
"30. The right to fair hearing is a guaranteed right.
Every person before an Authority exercising the adjudicatory powers has a right to know the evidence to be used against him. This principle is firmly established and recognized by this Court in Dhakeswari Cotton Mills Ltd. Vs. Commissioner of Income Tax, West Bengal, AIR 1955 SC 65: (1955) 1 SCR 941. However, disclosure not necessarily involves supply of the material. A person may be allowed to inspect the file and take notes. Whatever mode is used, the fundamental principle remains that nothing should be used against the person which has not brought to his notice. If relevant material is not ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 33 disclosed to a party, there is prima facie unfairness irrespective of whether the material in question .
arose before, during or after the hearing. The law is fairly well settled if prejudicial allegations are to be made against a person, he must be given particulars of that before hearing so that he can prepare his defence. However, there are various exceptions to this general rule where disclosure of evidential of material might inflict serious harm on the person directly concerned or other persons or where disclosure would be breach of confidence or might be rt injurious to the public interest because it would involve the revelation of official secrets, inhibit frankness of comment and the detection of crime, might make it impossible to obtain certain clauses of essential information at all in the future [See R vs. Secretary of State for Home Department, ex. p. H- (1995) QB 43: (1994) 3 WLR 1110: (1995) 1 All ER 479 (CA)].
31. The concept of fairness may require the Adjudicating Authority to furnish copies of those documents upon which reliance has been placed by him to issue show cause notice requiring the noticee to explain as to why an inquiry under Section 16 of the Act should not be initiated. To this extent, the principles of natural justice and concept of fairness are required to be read into rule 4(1) of the Rules. Fair procedure and the principles of natural justice are in built into the Rules. A noticee is always entitled to satisfy the Adjudicating Authority that those very documents upon which reliance has been ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 34 placed do not make out even a prima facie case requiring any further inquiry."
.
(Emphasis supplied)
55. In Automotive Tyre Manufactures Association vs. Designated Authority & others, (2011) 2 SCC 258 (Two Judges) the Court held that:-
of "80. It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of rt natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. It is equally trite that the concept of natural justice can neither be put in a strait-jacket nor is it a general rule of universal application.
81. Undoubtedly, there can be exceptions to the said doctrine. As stated above, the question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred and the ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 35 purpose for which the power is conferred and the final effect of the exercise of that power. It is only .
upon a consideration of these matters that the question of application of the said principle can be properly determined. (See: Union of India vs. Col. J.N. Sinha & Anr. (1970) 2 SCC 458.)"
[Emphasis supplied] of
56. Further in Ashwin S. Mehta & another vs. Union of India & others, (2012) 1 SCC 83 (Two Judges) Court observed that the underlying principle of natural justice, rt evolved under the common law, is to check arbitrary exercise of power by any authority, irrespective of whether the power which is conferred on a statutory body or tribunal is administrative or quasi-judicial. The Court elaborated that discretion when applies to a court of justice means discretion guided by law. It must not be arbitrary, vague and fanciful, but legal and regular.
57. In A. S. Motors Pvt. Ltd. vs. Union of India & others, (2013) 10 SCC 114 (Two Judges) the Court had an occasion to deal with a case where on account of certain violations noticed by the National Highway Authority of India, right of a licensee to collect toll fee, on the basis of certain reports, stood forfeited. The court reiterated the ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 36 principle that rules of natural justice are not embodied rules. The question whether requirements of natural justice .
stood met by the procedure adopted would, to a great extent, be dependent upon the facts and circumstances of the case in point, the constitution of the Tribunal and its governing rules. The court reiterated the principles laid of down in Keshav Mills Co. Ltd. vs. Union of India, (1973) 1 SCC 380 (Three Judges) that the concept of natural justice rt could not be put into a strait-jacket. Hence it would be futile to look for definitions or standards of natural justice from various judicial pronouncements and then try to apply them to the facts of any given case. Primarily, what is essential, in all cases, is that the person concerned should have had reasonable opportunity of presenting his case and that the authority should have acted fairly, impartially and reasonably. Grievance with regard to correctness of the report resulting into forfeiture of right was turned down keeping in view earlier litigation and absence of any act of malafide, bias or prejudice on the part of the officers dealing with the issue. Eventually Hon'ble Mr. Justice T. S. Thakur, J, speaking for the Bench, observed that:-
::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 37"8. Rules of natural justice, it is by now fairly well settled, are not rigid, immutable or embodied rules .
that may be capable of being put in straitjacket nor have the same been so evolved as to apply universally to all kind of domestic tribunals and enquiries. What the Courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected of party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably. The doctrine rt of audi alteram partem is thus aimed at striking at arbitrariness and want of fair play. Judicial pronouncements on the subject have, therefore, recognised that the demands of natural justice may be different in different situations depending upon not only the facts and circumstances of each case but also on the powers and composition of the Tribunal and the rules and regulations under which it functions. A Court examining a complaint based on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation. To that extent there has been a shift from the earlier thought that even a technical infringement of the rules is sufficient to vitiate the action. Judicial pronouncements on the subject are a legion. We may refer to only some of the decisions on the subject which should in our opinion suffice."::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 38
58. It be only observed that recently in Union of India & others vs. Sanjay Jethi & another, (2013) 16 SCC 116 .
(Two Judges), Hon'ble Mr. Justice Dipak Misra, J., speaking for the Bench, observed that:-
"51. The principle that can be culled out from the number of authorities fundamentally is that the of question of bias would arise depending on the facts and circumstances of the case. It cannot be an imaginary one or come into existence by an rt individual's perception based on imagination. While dealing with the plea of bias figment of advanced by the delinquent officer or an accused a Court or tribunal is required to adopt a rational approach keeping in view the basic concept of legitimacy of interdiction in such matters, for the challenge of bias, when sustained, makes the whole proceeding or order a nullity, the same being coram non-judice. One has to keep oneself alive to the relevant aspects while accepting the plea of bias. It is to be kept in mind that what is relevant is actually the reasonableness of the apprehension in this regard in the mind of such a party or an impression would go that the decision is dented and affected by bias. To adjudge the attractability of plea of bias a tribunal or a Court is required to adopt a deliberative and logical thinking based on the acceptable touchstone and parameters for testing such a plea and not to be guided or moved by emotions or for ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 39 that matter by one's individual perception or misguided intuition."
.
59. It is, thus, seen that the Commissioner is bound to comply with the principles of natural justice, not only by the mandate of the statute but also by the very nature of functions, which he is required to discharge. Rule of audi of alteram partem is squarely applicable. His actions have to be reasonable, just, fair, impartial, reasoned, logical and rt honest. However the extent of applicability of principles of natural justice would be dependent upon given fact situation of each case. For example, if there is admission of breach of provision of law or action is palpably and ex facie illegal, there may not be any requirement to have an elaborate enquiry. Principles of natural justice would also be dependent upon the extent of the consequences which the action may have either on an individual or society at large. The concept of "natural justice" implies in itself, duty to act fairly and exercise of discretion, if any, has to be guided only by law. It cannot be capricious, fanciful, arbitrary or for extraneous purposes and reasons. There cannot be any strait-jacket formula and what is necessarily ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 40 required would be equal and reasonable opportunity of full presentation of case and the Commissioner acting in a fair, .
impartial and a reasonable manner.
Does a party have a right of cross-examining a witness in the proceedings conducted by the Commissioner:
60. Noticeably on the issue of cross examining a of witness, views expressed by Hon'ble the Supreme Court of India varies with different enactments and fact situations.
61. rt Right of a delinquent official to cross examine a witness, in a disciplinary proceeding initiated against him, stands recognized by Hon'ble the Supreme Court of India in its various judicial pronouncements. [Khem Chand vs. Union of India & others, AIR 1958 SC 300 (Five Judges); State of Madhya Pradesh vs. Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623 (Five Judges); Meenglass Tea Estate vs. The Workmen, AIR 1963 SC 1719 (Three Judges); M/s Kesoram Cotton Mills Ltd. vs. Gangadhar & others, AIR 1964 SC 708 (Two Judges); Union of India vs. H.C. Goel, AIR 1964 SC 364 (Five Judges); State of Uttar Pradesh vs. Om Prakash Gupta, 1969 (3) SCC 775 (Two Judges); Uttar Pradesh Government vs. Sabir Hussain, (1975) 4 SCC 703 (Three Judges); Mazharul Islam Hashmi vs. State of U.P. & ::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 41 another, (1979) 4 SCC 537 (Two Judges); K. L. Tripathi vs. State Bank of India & others, (1984) 1 SCC 43 (Three .
Judges); Union of India & others vs. Mohd. Ramzan Khan, (1991) 1 SCC 588 (Three Judges); S. C. Girotra vs. United Commercial Bank (UCO Bank) & others, 1995 Supp (3) SCC 212 (Two Judges); Kuldeep Singh vs. Commissioner of Police of & others, (1999) 2 SCC 10 (Two Judges) ; South Bengal State Transport Corpn. vs. Sapan Kumar Mitra & others, rt (2006) 2 SCC 584 (Two Judges); and Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra & others, (2013) 4 SCC 465 (Two Judges)]
62. However, a Constitution Bench in T.R. Varma (Supra), while dealing with the case of dismissal of an employee has also held that:-
"10. Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law.::: Downloaded on - 15/04/2017 19:12:06 :::HCHP 42
Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural .
justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no of materials should be relied on against him without his being given an opportunity of explaining them.
If these rules are satisfied, the enquiry is not rt open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed. Vide the recent decision of this Court in New Prakash Transport Co. v. New Suwarna Transport Co., 1957 SCR 98: ((S) AIR 1957 SC 232) (C) where this question is discussed."
[Emphasis supplied]
63. A Constitution Bench in The State of Jammu & Kashmir & others, vs. Bakshi Gulam Mohammad & another, AIR 1967 SC 122 (Five Judges), while dealing with the provisions of Section 3 of the Commission of Inquiry Act, 1962, held that rules of natural justice require an opportunity of hearing being afforded to the party against whom allegation is being inquired into. However, such right of hearing would not include the right to cross examine, which is dependent upon the circumstances of each case as ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 43 also the statute under which allegations are sought to be inquired. What prevailed upon the Court was the binding .
effect of the report of the Commission.
64. Right of a detenu, so detained under the provisions of the National Security Act, 1980, to cross examine a person whose statement led to such detention of was turned down by a Constitution Bench in A. K. Roy vs. Union of India and others, (1982) 1 SCC 271 (Five Judges) in rt the following terms:
"97. The principal question which arises is whether the right of cross examination is an integral and inseparable port of the principles of natural justice. Two fundamental principles of natural justice are commonly recognized, namely, that an adjudicator should be disinterested and un biased (nemo judex in cause sua) and that, the parties must be given adequate notice and opportunity to be heard (audi alteram partem). There is no fixed or certain standard of natural justice, substance or procedural, and in two English cases the expression 'natural justice' was described as one 'sadly lacking in precision' [R. v. Local Government Board, Ex parte Arlidge, (1914) 1 KB 160 at 199: (1914-15) All ER Rep at 21] and as 'vacuous' [Local Government Board v. Arlidge, 1915 AC 120, 138: (1914-15) All ER Rep 1]. The principles of natural justice are, in fact, mostly ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 44 evolved from case to case, according to the broad requirements of justice in the given case.
.
98. We do not suggest that the principles of natural justice, vague and variable as they may be, are not worthy of preservation. As observed by Lord Reid in Ridge Versus Baldwin, 1964 AC 40, 64-65:
(1963) 2 All ER 66 (HL) the view that "natural justice is so vague as to be practically meaningless" is of tainted by "the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist". But the rt importance of the realization that the rules of natural justice are not rigid norms of unchanging content, consists in the fact that the ambit of those rules must vary according to the context, and they have to be tailored to suit the nature of the proceeding in relation to which the particular right is claimed as a component of natural justice. Judged by this test, it seems to us difficult to hold that detenu can claim the right of cross-examination in the proceeding before the Advisory Board. First and foremost, cross-
examination of whom? The principle that witnesses must be confronted and offered for cross- examination applies generally to proceedings in which witnesses are examined or documents are adduced in evidence in order to prove a point. Cross-examination then becomes a powerful weapon for showing the untruthfulness of that evidence. In proceedings before the Advisory Board, the question for consideration of the Board is not whether the detenu is guilty of any charge but whether there is ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 45 sufficient cause for the detention of the person concerned. The detention, it must be remembered, is .
based not on facts proved either by applying the test of preponderance of probabilities or of reasonable doubt. The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to of certain stated objects. The proceeding of the Advisory Board has therefore to be structured differently from the proceeding of judicial or quasi- rt judicial tribunals, before which there is a lis to adjudicate upon."
[Emphasis supplied]
65. The decision of the Court in Lakshman Exports Ltd. vs. Collector of Central Excise, (2005) 10 SCC 634 (Three Judges), allowing the request of the party to cross-
examine the witnesses, before the Tribunal, in proceedings initiated under the Central Excise Act, 1944, is in the given facts and circumstances and cannot be said to be ratio decidendi.
66. In Transmission Corpn. Of A.P. Ltd. & others vs. Sri Rama Krishana Rice Mill, (2006) 3 SCC 74 (Two Judges), the Court while dealing with a case where based on the report prepared by the officials of the electricity supplier, ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 46 order of assessment was passed and demand raised and the assessee insisting upon cross examining the officials of .
the supplier, while repelling such right held that:
"9. In order to establish that the cross examination is necessary, the consumer has to make out a case for the same. Merely stating that the statement of an officer is being utilized for the of purpose of adjudication would not be sufficient in all cases. If an application is made requesting for grant of an opportunity to cross examine any official, the rt same has to be considered by the adjudicating authority who shall have to either grant the request or pass a reasoned order if he chooses to reject the application. In that event an adjudication being concluded, it shall be certainly open to the consumer to establish before the appellate authority as to how he has been prejudiced by the refusal to grant opportunity to cross-examine any official. As has been rightly noted by the High Court in the impugned judgment where the reliance is only on accounts prepared by a person, cross examination is not necessary. But where it is based on reports alleging tampering or pilferage, the fact situation may be different. Before asking for cross examination the consumer may be granted an opportunity to look into the documents on which the adjudication is proposed. In that event, he will be in a position to know as to the author of which statement is necessary to be cross-examined. The applications for ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 47 cross-examination are not to be filed in routine manner and equally also not to be disposed of by .
adjudicator in casual or routine manner. There has to be application of mind by him. Similarly, as noted above, the consumer has to show as to why cross examination is necessary."
[Emphasis supplied]
67. In New India Assurance Company Ltd. Versus of Nusli Neville Wadia and another, (2008) 3 SCC 279 (Two Judges), Court had an occasion to deal with the case where rt composite notice of eviction and damages was issued against a person whose eviction was sought under the provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971. In view of given facts and circumstances, Court upheld the contention of the tenant of the evidence firstly to be led by the landlord. Noticeably, Court gave purposive construction to the provisions of Sections 4 and 5 of the Act, making it obligatory for the landlord and the noticee to adduce evidence in support of its case.
68. However, subsequently, the Court in Telstar Travels Private Ltd. & others vs. Enforcement Directorate, (2013) 9 SCC 549 (Two Judges), speaking through Hon'ble Mr. Justice T. S. Thakur, J., observed that:-
::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 48"25. There is, in our opinion, no merit even in that submission of the learned counsel. It is evident from .
Rule 3 of the Adjudication Rules framed under Section 79 of the FERA that the rules of procedure do not apply to adjudicating proceedings. That does not, however, mean that in a given situation, cross examination may not be permitted to test the veracity of a deposition sought to be issued against a of party against whom action is proposed to be taken. It is only when a deposition goes through the fire of cross-examination that a Court or Statutory Authority rt may be able to determine and assess its probative value. Using a deposition that is not so tested, may therefore amount to using evidence, which the party concerned has had no opportunity to question. Such refusal may in turn amount to violation of the rule of a fair hearing and opportunity implicit in any adjudicatory process, affecting the right of the citizen. The question, however, is whether failure to permit the party to cross examine has resulted in any prejudice so as to call for reversal of the orders and a de novo enquiry into the matter. The answer to that question would depend upon the facts and circumstances of each case. For instance, a similar plea raised in Surjeet Singh Chhabra v. Union of India and Ors. (1997) 1 SCC 508 before this Court did not cut much ice, as this Court felt that cross examination of the witness would make no material difference in the facts and circumstances of that case. The Court observed:::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 49
"3. It is true that the petitioner had confessed that he purchased the gold and had brought it. He admitted that he purchased the gold and .
converted it as a kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also FERA. When the petitioner seeks for cross-examination of the witnesses who have said that the recovery was made from the petitioner, necessarily an opportunity requires to be given for the cross- examination of the witnesses as regards the place at which of recovery was made. Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him rt and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call panch witnesses for examination and cross- examination by the petitioner."
26. We may also refer to the decision of this Court in M/s Kanungo & Company v. Collector of Customs and Ors. (1973) 2 SCC 438. The appellant in that case was carrying on business as a dealer, importer and repairer of watches in Calcutta. In the course of a search conducted by Customs Authorities on the appellant's premises, 280 wrist watches of foreign make were confiscated. When asked to show cause against the seizure of these wrist watches, the ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 50 appellants produced vouchers to prove that the watches had been lawfully purchased by them .
between 1956 and 1957. However, upon certain enquiries, the Customs Authorities found the vouchers produced to be false and fictitious. The results of these enquiries were made known to the appellant, after which they were given a personal hearing before the adjudicating officer, the Additional of Collector of Customs. Citing that the appellant made no attempt in the personal hearing to substantiate their claim of lawful importation, the Additional rt Collector passed an order confiscating the watches under Section 167(8), Sea Customs Act, read with Section 3(2) of the Imports and Exports (Control) Act, 1947. The writ petition filed by the appellant to set aside the said order was allowed by a Single Judge of the High Court on the ground that the burden of proof on the Customs Authorities had not been discharged by them. The Division Bench of the High Court reversed this order on appeal stating that the burden of proving lawful importation had shifted upon the firm after the Customs Authorities had informed them of the results of their enquiries.
27. In appeal before this Court, one of the four arguments advanced on behalf of the appellant was that the adjudicating officer had breached the principles of natural justice by denying them the opportunity to cross-examine the persons from whom enquiries were made by the Customs Authorities. The Supreme Court rejected this ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 51 argument stating as follows (Kanungo & Company case):
.
"12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show-cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the of appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our-opinion, the principles of natural justice rt do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant."
28. Coming to the case at hand, the Adjudicating Authority has mainly relied upon the statements of the appellants and the documents seized in the course of the search of their premises. But, there is no dispute that apart from what was seized from the business premises of the appellants the Adjudicating Authority also placed reliance upon documents produced by Miss Anita Chotrani and Mr. Raut. These documents were, it is admitted disclosed to the appellants who were permitted to inspect the same. The production of the documents duly confronted to the appellants was in the nature of production in terms of Section 139 of the Evidence Act, where the ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 52 witness producing the documents is not subjected to cross examination. Such being the case, the refusal .
of the Adjudicating Authority to permit cross examination of the witnesses producing the documents cannot even on the principles of Evidence Act be found fault with. At any rate, the disclosure of the documents to the appellants and the opportunity given to them to rebut and explain the same was a of substantial compliance with the principles of natural justice. That being so, there was and could be no prejudice to the appellants nor was any rt demonstrated by the appellants before us or before the Courts below. The third limb of the case of the appellants also in that view fails and is rejected."
[Emphasis supplied]
69. Applying the aforesaid principles, it is held that it is not a matter of rule that a party has a right of cross-
examining a party or adducing evidence in the proceedings conducted by the Commissioner. Examination of a witness must precede cross-examination. Prejudice caused as a result of failure thereof, is imperatively required, to be shown by the agitating party. The Oaths Act, 1969 is also not applicable to the proceedings before the Commissioner.
Hence there was no question of examining the J.E. on oath.
Decision of the Commissioner has to be on the basis of material so placed on record by the parties.
::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 53What is the meaning of the word Reasonable Opportunity so used in the Act:
.
70. In Sri Rama Krishana Rice Mill (supra), the Court also held the word "reasonable" to mean as follows:-
"(i) "What is 'fair' and proper under the circumstances. ..."
(ii) "The expression "reasonable" is not susceptible of of a clear and precise definition. A thing which is reasonable in one case may not be reasonable in another. Reasonable does not mean the best, it rt means most circumstances."
suitable in a given set of
(iii) "There is no point on which a greater amount of decision is to be found in Courts of law and equity than as to what is reasonable : It is impossible a priori to state what is reasonable as such in all cases. You must have the particular facts of each case established before you can ascertain what is meant by reasonable under the circumstances - Lord Romilly, M.R., Labouchere v. Dawson, (1872), LR 13 Eq. 322: 25 LT 894.""
71. In The State of Bombay vs. Atma Ram Shridhar Vaidya, AIR (38) 1951 SC 157 (Six Judges) the Court held that conferment of a right to make representation necessarily carries with it the obligation on the part of the ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 54 detaining authority to furnish the grounds including material on which order of detention is passed.
.
72. In M/s. Fedco (P) Ltd. & another vs. S. N. Bilgrami & others, AIR 1960 SC 415 (Five Judges), the Court had an occasion to deal with a case where for the reasons of fraud having been exercised by the licensee, the license stood of cancelled by the licensor/licensing authority. On facts, the court found that the licensee was already aware of the fraud rt committed by him and the material so relied upon by the authority to cancel the license, as such, no breach of principles of natural justice stood committed, more so, in the light of the failure on the part of the licensee to highlight the prejudice so caused to him. The Court gave meaning to the expression "reasonable opportunity", in the following terms:-
"8. The requirement that a reasonable opportunity of being heard must be given has two elements. The first is that an opportunity to be heard must be given; the second is that this opportunity must be reasonable. Both these matters are justiciable and it is for the Court to decide whether an opportunity has been given and whether that opportunity has been reasonable. In the present case, a notice to show cause against the proposed order was given; it was ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 55 stated in the notice that the ground on which the cancellation was proposed was that the licences has .
been obtained fraudulently; and later on a personal hearing was given. It must therefore be held that the requirement that an opportunity to be heard must be given was satisfied. What the petitioners Counsel strenuously contends however is that though an opportunity was given that opportunity was not of reasonable. In making this argument he had laid special stress on the fact that particulars of the fraud alleged were not given and an opportunity to inspect rt the papers though repeatedly asked for was not given. It is now necessary to consider all the circumstances in order to arrive at a conclusion whether the omission to give particulars of fraud and inspection of papers deprived the petitioners of a reasonable opportunity to be heard.
9. There can be no invariable standard for "reasonableness" in such matters except that the Court's conscience must be satisfied, that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him that the grounds on which the action is proposed are either non-existent or even if they exist they do not justify the proposed action. The decision of this question will necessarily depend upon the peculiar facts and circumstances of each case, including the nature of the action proposed, the grounds on which the action is proposed, the material on which the allegations are based, the attitude of the party against whom the action is proposed in showing cause against such proposed action, the nature of the plea raised by him in reply, the requests for further opportunity that may be made, his admissions by conduct or ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 56 otherwise of some or all the allegations and all other matters which help the mind in coming to a fair conclusion on the question." ...
.
(Emphasis supplied)
73. Another Constitution Bench in Fazal Bhai Dhala vs. The Custodian General Evacuee Property, New Delhi & another, AIR 1961 SC 1397 (Five Judges), had an occasion of to deal with the expression "reasonable opportunity of being heard", stipulated under the provisions of Section 26 of the Administration of Evacuee Property Act, 1950. The rt action taken by the authority was impugned on the ground that prior to passing of the order, no notice was issued, though opportunity of hearing afforded. The Court held that the proviso secures requirements of principles of natural justice as it provides that any order prejudicial to any person shall not be passed without giving such person a reasonable opportunity of being heard. The law only required the person concerned to be given a reasonable opportunity of being heard before passing of any prejudicial order. If this reasonable opportunity of being heard cannot be given without the service of the notice the omission to serve the notice would be fatal; where however proper hearing can be given without service of notice, it would not ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 57 matter at all, and all that has to be seen is whether even though no notice was given, reasonable opportunity of .
being heard was given or not.
74. Thus reasonable opportunity only means hearing which is fair. Party must have known the issue, material relied upon and opportunity to present their case. In effect of principles of audi alteram partem need to be complied with, with equal vigour.
rt Scope of interference Under Articles 226 & 227 of the Constitution of India:
75. A Constitution Bench in T.R. Varma (Supra) has held as under:-
"6. ... ... It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, 1950 SCR 566: (AIR 1950 SC 163) (A) "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs":
Vide also K. S. Rashid and Son v. The Income-tax Investigation Commission, 1954 SCR 738 at p. 747: (AIR 1954 SC 207 at p. 210) (B). And where such ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 58 remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under .
Art. 226, unless there are good grounds therefor.
None such appears in the present case. On the other hand, the point for determination in this petition whether the respondent was denied a reasonable opportunity to present his case, turns mainly on the question whether he was prevented from cross of examining the witnesses, who gave evidence in support of the charge.
That is a question on which there is a serious rt dispute, which cannot be satisfactorily decided without taking evidence. It is not the practice of Courts to decide questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if the learned Judges had referred the respondent to a suit." ... ....
76. Scope of interference by this Court under Article 227 of the Constitution of India stands settled by the Constitution Bench in Nagendra Nath Bora (Supra). The power of interference is limited to seeing as to whether the Tribunal functions within the limits of its authority or not.
77. With the aforesaid enunciation of law and observations, factual matrix is examined.
78. Unlike Chapter II of the Act, which makes the procedure so prescribed under the provisions of the Code of ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 59 Civil Procedure applicable, Chapter XIV of the Act does not provide for applicability of provisions of either the Civil .
Procedure Code or the Indian Evidence Act. The proceedings before the Commissioner are summary in nature. In discharge of his duties as a quasi judicial authority, he is bound to adhere to the principles of natural of justice, but however provisions of the Evidence Act would not apply. rt
79. Record reveals that before the Commissioner, respondent never sought any opportunity of cross-
examining the witness. Also denial of such opportunity or breach of procedural irregularity were not the grounds raised in the appeal. Grievance of violation of principles of natural justice was restricted to non association by the J.E. in the measurement of the property. What is "reasonable opportunity of showing cause" is not defined under the Act.
Principles of natural justice cannot be earmarked in a strait-
jacket formula. Extent of its applicability is dependent upon given facts and circumstances.
80. Now in the instant case, respondent was afforded adequate opportunity to show cause and put across her ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 60 viewpoint on all counts. The Commissioner had only asked the J.E. to submit a status report. She never requested for .
measurement of the property in her presence. In fact it is not her case that the J.E. trespassed and measured the same. Shops in question were only in her possession and without her association or consent they could not have been of measured. Significantly no challenge to the report was laid before the Commissioner.
rt Not only that, opportunity was afforded to the respondent to take remedial measures which she failed to avail of. The report of the J.E. was only a document revealing the factum of construction existing on the spot. Whether authorized or not was for the Commissioner to consider on the basis of objective appreciation of the material placed before him. The respondent could have sought comparison of the sanctioned plan with the report submitted by the J.E. or requested for its re-verification. She could have also got her own report prepared and placed on record. Only in the event of conflicting views, Commissioner, if so requested, desired or required could have considered the possibility of resorting to statutory provisions with regard to physical verification of ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 61 the property on the spot. Expression "reasonable opportunity" so used under Section 253 of the Act would not .
take in its sweep and import, right of the assessee to cross-
examine a person, who was never examined as a witness.
No procedural irregularities can be said to have been committed by the Commissioner in not affording any of opportunity of cross-examination.
81. Expression "reasonable opportunity" would only rt mean fairness of procedure and hearing and compliance of principles of natural justice. It is not that in every case of violation of principles of natural justice, Court is bound to interfere. Prejudice caused is required to be shown which in the instant case is none.
82. While exercising his powers, under Section 253 of the Act, Commissioner is not performing ministerial act.
Though Commissioner is not a Court, yet the very nature of functions he is discharging are quasi judicial. In view of the non-applicability of provisions of the Evidence Act, Commissioner is to be guided by the settled principles of natural justice. Admissibility of the report of the J.E. was never an issue and it is not that under all circumstances, ::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 62 Commissioner is bound to adduce evidence by first giving oath and have the witness examined or cross examined.
.
Considering the nature of proceedings, on objective assessment, he has to form his opinion, based on the material placed on record by the parties. The report of the J.E. was a document relied upon by the parties and its non of admissibility not a relevant issue in the proceedings before him. rt
83. Thus, for all the aforesaid reasons, order passed by the Appellate Authority cannot be said to be based on settled principles of law. It exceeded its authority and jurisdiction in directing the Commissioner to examine the Officer(s), on oath, and also afford opportunity of cross-
examination to the respondent.
84. No doubt, right to property being a constitutional right needs to be protected and zealously safeguarded and any act which is arbitrary, irrational or illegal, infringing such rights has to be struck down, but then it has to be within the settled and permissible legal sanctions. Ratio laid in A.S. Motors Pvt. Ltd. (supra) is squarely applicable to the given facts.
::: Downloaded on - 15/04/2017 19:12:07 :::HCHP 6385. In view of the aforesaid, impugned order dated 28.12.2013 (Annexure P-5) is quashed and set aside, .
leaving the parties to take appropriate action in accordance with law.
In view of the above, present petition stands disposed of, so also pending application(s), if any.
of
rt (Sanjay Karol),
Judge.
October 14 , 2015 (PK)
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