Madras High Court
K.Jothirani vs The District Revenue Officer on 21 September, 2012
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/09/2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.12317 of 2012 and M.P.(MD)Nos.1 and 2 of 2012 K.Jothirani, Rep.by her Power of Attorney T.M.Bommathevan ... Petitioner Vs. 1.The District Revenue Officer, Madurai District. 2.The District Registrar (Administration), Madurai (North), Madurai. 3.Mrs.M.B.Lalitha ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records relating to the proceedings of the impugned order in Na.Ka.No.3116/M1/2012, dated 28.08.2012 on the file of the second respondent and quash the same. !For Petitioner ... Mr.G.Prabhu Rajadurai ^For Respondents 1and2 ... Mr.A.K.Baskarapandian Special Government Pleader ******* :ORDER
***** When the matter came up on 18.09.2012, upon perusal of the impugned order, by observing that there is absolutely no cause of action or details of the complaint, dated 30.07.2012, warranting the District Registrar (Administration) in the cadre of Assistant Inspector General of Registration, Madurai (North), to issue a show cause notice to the writ petitioner and also by observing that the impugned order is bereft of details, as to what action, the said authority has contemplated, on the failure of the petitioner to submit documents and explanation to the show cause notice dated 28.08.2012, this Court directed the learned Special Government Pleader to get instructions from the District Registrar (Administration), Madurai (North). Till such time, this Court also directed the respondents to refrain from taking any adverse action, in pursuant to the show cause notice dated 28.08.2012.
2. On this day, when the matter came up for hearing, on instructions from the District Registrar (Administration), Madurai (North), Mr.A.K.Baskarapandian, learned Special Government Pleader submitted that on receipt of the complaint dated 30.07.2012, from Smt.M.B.Lalitha, in exercise of the powers under Section 83 of the Registration Act, 1908, the District Registrar (Administration), Madurai (North), has caused the show cause notice. Learned Special Government Pleader further submitted that the said authority is empowered to cause investigation or enquiry or probe into as to whether the petitioner has committed any offences punishable under the Registration Act, 1908 and in that context, issuance of the notice cannot be said to be without jurisdiction. However, the learned Special Government Pleader fairly submitted that the details, which necessitated issuance of notice, in exercise of power under Section 83 of the Registration Act, 1908, have not been clearly stated in the notice.
3. Per contra, placing reliance on a decision of the Apex Court in New Samundri Transport Co. (P) Ltd. vs. State of Punjab reported in AIR 1976 SC 57 equivalent to 1976(1) SCC 757 and a judgment of the Division Bench of this Court in W.A.(MD)No.579 of 2010, dated 05.01.2011 [C.Ashokkumar vs. The District Collector/Inspector of Panchayats, Dindigul], Mr.Prabhu Rajadurai, learned counsel appearing for the petitioner submitted that even a show cause notice issued to a person must contain the allegations in a specific manner, so that, the person to whom the notice is issued would be in a position to controvert or deny any allegation. According to him, the impugned show cause notice is liable to be set aside on the sole ground that it is bereft of any details and the proposed enquiry would be an empty formality.
4. In a recent judgment in V.D.S.R.Re.Rolling Mill v. Special Commissioner & Commissioner of Land Administration reported in 2012(5) MLJ 817, this Court considered the meaning to the word "notice". In paragraph Nos.107 to 115, this Court has considered the term 'notice' as follows:
"107. Notice is the making something known, of what a man was or might be ignorant of before. And it produces divers effects, for, by its, the party who gives the same shall have some benefit, which otherwise he should not have had; the party to whom the Notice is given is made subject to some action or charge, that otherwise he had not been liable to; and has estate in danger of prejudice. (Co.Lit.309 TOMLINS LAW DICTIONARY).
108. Actual Notice is "When there is positive information of a fact," It is "Actual knowledge by the party of the very matter or thing, of which he is said to have notice," "It consists in express information of the fact." It is "knowledge brought directly home to the party." "However closely actual notice may be in many instances approximate knowledge, there my be actual notice without knowledge." (See 29 Ame.Cyc.1113)
109. Constructive Notice, defines "Legal inference from established facts." "Notice imputed by the law to a person not having actual notice."
"Knowledge of any fact which would put a prudent man upon inquiry." "Knowledge of such facts as should induce inquiry, and as would lead to injury in the case of an ordinarily prudent man and which cannot be neglected without a voluntary closing of the eyes, and conduct inconsistent with good faith."
110. Notice, in its legal sense, may be defined as "information concerning a fact actually communicated to a party by an authorised person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent to knowledge in its legal consequences. (13 All 171: 30 B.275)
111. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinately the case he has to meet. Time given of the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity the order passed against the person in absentia becomes wholly vitiated. Thus, it is but essential that a party should be put on Notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fairplay. Another principle of natural justice is popularly known as rule against bias. A third one is that the party when requested should be given a copy of the order passed against him, containing the reasons for the adverse order. (Hurhanuddin Hussain v. State of U.P., AIR 1970 AP 137)
112. The word "Notice" means intimation, information, cognizance or observance, "notice" implies knowledge and this knowledge comes from direct perception or from inference reasonably arising out of several facts and circumstances. (Manick Lal Seal v. K.P.Choudhary, AIR 1976 Cal.115)
113. The word 'Notice' means intimation announcement, information, warning, cognizance, observation, "Notice" implies knowledge and this knowledge may come from direct perception or from inference reasonably arising out of several facts and circumstances which are manifest on plaint averments. (Kanchanbai v. Khetidas, (1991) 1 Civil LJ 553)
114. 'Notice' is originated from Latin word 'notifia' which means 'a being know', knowing is wide enough in legal circle to include plaint filed in suit, notice in its legal sense, is, information concerning fact actually communicated to party by authorised person or actually derived by him from proper sources or else presumed by law to have been acquired by him, which information is regarded as equivalent to knowledge in its legal consequences. (Commissioner of Sales Tax and Others v. Subhash & Co., AIR 2003 SC 1623:(2003)3 SCC 454)
115. A notice, calling upon explanation or objection, is given, to arrive at a conclusion on facts. The purpose of issuing a show cause notice is to afford an opportunity to call for objections/reply to the action proposed to be taken by the authority. No man should be condemned unheard. On receipt of the objections/reply, the authority has to consider and take a decision. There should be fairness and reasonableness and to prevent miscarriage of justice. Principles of natural justice is no more a straitjacket formula. It depends upon the subject matter and rests on the provisions. There must have been real prejudice to the one, who propounds violation and it has to be adjudged on the facts and circumstances of each case. The Court has to consider, whether there has been fairness and whether the decision could be arrived at in a just and objective manner, with relevance to the material on record. The Court has to see whether any actual prejudice has been caused to a person by the supposed denial of a particular right. Judged in the light of the principles of law, enunciated by the Apex Court, in the case on hand, the prayer to issue fresh notice and an opportunity to be given would squarely fall within the Doctrine of "Useless formality". In the light of the principles of law and judged from the facts and circumstances, this Court sees that no prejudice has been caused to the petitioner and therefore, there is no violation of principles of natural justice."
5. In AIR 1976 SC 57:1976(1) SCC 757 cited supra, the challenge was to the cancellation of permit. The contention raised before the Supreme Court was that it was a case of bald notice making no reference to any particular permit for cancellation or suspension of permit. Observing that the Transport Commissioner did not apply his mind to scrutinise the reports for the purpose of taking appropriate legal action, the Supreme Court, while setting aside the cancellation, observed "that unless the breaches of conditions or other allegations are particularised with reference to each permit in the show cause notice, such notice is clearly invalid and no action can be taken under such a notice. The Supreme Court has observed that there has been a violation of principles of natural justice".
6. In W.A.(MD)No.579 of 2010 cited supra, a Division Bench of this Court, while considering a plea of violation of principles of natural justice on the ground that notice did not contain the allegations levelled, at paragraph No.7, observed as follows:
"It is evident that no allegation, which the appellant has to face, has been mentioned. It is an elementary principle of law that a show cause notice issued to a person before taking any action, must contain the allegations levelled against him in a specific manner, so that, he will be in a position to controvert or deny the allegation. Without making any imputation merely calling a person to appear for an enquiry is in violation of principles of natural justice."
7. In M.Arumugam v. The Tahsildar, Mambalam Guindy Taluk reported in 2010(2) CWC 543, a Tahsildar issued a notice of enquiry to the petitioner therein for change of patta. The said notice was challenged on the grounds inter alia that a civil suit was pending adjudication and, therefore, the enquiry contemplated was without jurisdiction. After considering the rival submissions, this Court, at paragraph No.14, held that the law is well settled that Writ against notice of enquiry does not lie, unless it is shown that any fundamental right is violated or any principle of natural justice is denied or the impugned notice was issued by an authority incompetent to do so. In the absence of any such right, the Court cannot interfere with enquiry notice. The above said judgment can also be made applicable to the facts of the present case, for the limited purpose that if there is a violation of principles of natural justice, then the proceedings can be challenged in a Court of law. In the case on hand, the petitioner has been asked to submit the documents and explanation, without being aware of the details of the complaint made against her by the said Smt.M.B.Lalitha in the complaint dated 30.07.2012. Unless the nature of allegations are set out in the show cause notice, conducting an enquiry would be an empty formality, in that there would be violation of principles of natural justice. In such view of the matter, the said judgment can also be made applicable to the case of the petitioner .
8. The observation of the Division Bench made in the above said judgement is applicable to the facts of this case, for the simple reason, that the impugned notice is bereft of any details.
9. Though the learned Special Government Pleader submitted that for causing investigation or enquiry, notice under Section 83 has been issued by the District Registrar (Administration), Madurai (North), as observed by the Division Bench, the impugned notice does not contain the details of the allegation. The decisions relied on by the learned counsel for the petitioner can be made applicable to the facts of the present case.
10. In view of the reasons stated above, the impugned order is liable to be set aside and accordingly, set aside. The Writ Petition stands allowed. However, if the Registering Authority decides to conduct any investigation or enquiry, in accordance with the provisions of the Registration Act, 1908, particularly, as per Section 83 of the Act, it is open to him to do so, setting out the details of the complaint dated 30.07.2012 said to have been given by Smt.M.B.Lalitha, and that he should provide a reasonable opportunity to the petitioner, in accordance with law. Consequently, the connected miscellaneous petitions are closed. No costs.
SML To
1.The District Revenue Officer, Madurai District.
2.The District Registrar (Administration), Madurai (North), Madurai.