Gujarat High Court
Kishanbhai Hargovandas Patel & vs State Of Gujarat & 6 on 5 June, 2017
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/16299/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16299 OF 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or
any order made thereunder ?
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KISHANBHAI HARGOVANDAS PATEL & 1
Versus
STATE OF GUJARAT & 6
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Appearance :
MR PRASHANT DESAI, SENIOR ADVOCATE with MR D.K. PUJ, ADVOCATE for
the Petitioners
MR SWAPNESHWAR GAUTAM, AGP for the Respondent Nos.1-2
MR KEYUR A VYAS, ADVOCATE for the Respondent No.4
MR MAULIK N SHAH, ADVOCATE for the Respondent No.7
RULE SERVED BY DS for the Respondent Nos.1,3-4
MR NAVIN K PAHWA for THAKKAR AND PAHWA ADVOCATES, ADVOCATE for
the Respondent Nos.5-6
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 05/06/2017
CAV JUDGMENT
1. Following are the prayers made in para 17 of the present petition filed under Article 226 of the Constitution of India:-
(A) This Hon'ble Court may be pleased to issue the writ of Mandamus or any other Writ, order or direction in the nature of Mandamus quashing and setting aside the modification qua Original Plot No.207 and Final Plot Nos.107, 224, 227 and 229 made by the Respondent No.1 while exercising its powers as contemplated under Section 65(1)(a) and (b) read with Section 52(2) of the Gujarat Town Planning and Urban Development Act, 1976, with all consequential and incidental Page 1 of 28 HC-NIC Page 1 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT effects and further be pleased to direct the Respondents to vary the Preliminary Town Planning Scheme No.6 Unjha accordingly.
(B) During the pendency and final disposal of this Petition, this Hon'ble Court may be pleased to restrain the Respondents from implementing the modified scheme as per the Notification dated 02.12.2010 as it is in violation of the powers contained in Section 65(1)(b).
(C) ........
(D) ........"
2. This is second round of litigation by the petitioners for the same prayers made in the first round of litigation, being Special Civil Application No.26785 of 2007 preferred by the petitioners before this Court.
3. It appears from the facts stated in the petition as also from the documents annexed with the petition that after the State Government declared the area of Unjha as Development Area and the Development Plan was made, Unjha Area Development Authority- respondent No.4 prepared and submitted draft town planning scheme, Unjha No.6 (to be referred as draft scheme) for its sanction to the State Government. In the draft scheme, land bearing Survey No.296 admeasuring 4876 Sq. Mtrs. of the petitioners was denoted as original plot No.207 for the same area and against the original plot No.207, Final Plot No.207 admeasuring 3900 Sq. Mtrs. was proposed to be allotted to the petitioners. The State Government vide its notification dated 9.6.1989 sanctioned the draft scheme in exercise of the powers conferred by Section 48(2) of the Gujarat Town Planning and Urban Development Act, 1979 ('the Act' for short). The State Government then appointed the Town Planning Officer ("TPO" for short), as required by Section 50 of the Act for the purpose of such scheme. The TPO then prepared preliminary scheme and initially provided for allotment of Final Plot No.189 instead of Final Plot No.207 to the petitioners, however when the preliminary scheme was submitted to the State Government for its sanction, it was decided by Page 2 of 28 HC-NIC Page 2 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT the TPO to allot four final plots, i.e. Final Plot Nos.107, 224, 227 and 229, in all admeasuring 3876 Sq. Mtrs. to the petitioners. The State Government sanctioned the preliminary scheme submitted by the TPO, however with modifications for different lands, including for the final plots decided to be allotted to the petitioners by the TPO. As per the modification in the sanctioned preliminary scheme, the petitioners were allotted Final Plot No.294 having area of 3890 Sq. Mtrs. The petitioners, being aggrieved by such decision of the State Government, filed the above-referred petition being Special Civil Application No.26785 of 2007 (referred as 'First Round of Litigation"). In the First Round of Litigation before this Court, various contentions were raised, including the contentions that the State Government has no power under Section 65 of the Act to make substantial modification in the preliminary scheme submitted by the TPO but can make such modification which is necessary to correct error, irregularity or informality and that before making modification in the preliminary scheme, principles of natural justice were required to be followed.
4. The said petition was allowed vide judgment dated 10.2.2010 and the preliminary scheme sanctioned by the State Government was quashed qua the land of the petitioners and the preliminary scheme in respect of the land of the petitioners was ordered to be treated as notice, inviting objections and suggestions and permitting the petitioners and other affected parties to submit their objections and suggestions and the State Government was directed to take appropriate decision in accordance with law and on merits and after considering the objections and suggestions, if any received. All questions, whether modification for the land of the petitioners would be a substantial modification or for correcting an error, irregularity or informality were kept open.
5. It was after the above-said judgment, the petitioners put forth Page 3 of 28 HC-NIC Page 3 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT their objections/ suggestions before the Secretary, Urban Housing and Urban Development Department, State Government on 20.10.2010. In their objections/ suggestions, the petitioners have taken various contentions, including the contentions that the proposed modification in the preliminary scheme by the State Government cannot be said to be for correcting any error, irregularity or informality but is of substantial nature, that the State Government has got no such power under Section 65 of the Act and that even for correcting error, irregularity or informality, the State Government is to form an opinion that it is necessary but no such opinion is formed.
6. Learned senior advocate Mr. Prashant Desai appearing with learned advocate Mr. Puj for the petitioners submitted that the representation made by the petitioners raising crucial objections against the modification made by the State Government in the preliminary scheme are rejected without providing reasons and without hearing the petitioners. Mr. Desai submitted that the decision taken by the State Government to reject the representation of the petitioners reflects non-application of mind and it is an arbitrary decision, just to complete the empty formality. Mr. Desai submitted that by the impugned decision, the State Government has made substantial modification in the preliminary scheme for final plots allotted to the petitioners in the preliminary scheme. Mr. Desai submitted that no such powers are available to the State Government under Section 65 of the Act. Mr. Desai submitted that Section 65 of the Act permits only such modification in the preliminary scheme which on formation of opinion is found necessary for the purpose of correcting the error, irregularity or informality but not for shifting of plots finalized by the TPO. Mr. Desai submitted that no such opinion is formed nor even the modification made in the preliminary scheme is for the purpose of correcting any error, irregularity or informality but it is of a substantial nature. Mr. Desai submitted that if at all the State Government was of the opinion that some modification was required, Page 4 of 28 HC-NIC Page 4 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT it ought to have sent back the preliminary scheme to the TPO pointing out the error or irregularity crept in the preliminary scheme and the nature of modification required in the preliminary scheme. Mr. Desai while taking the Court through various provisions of the Act submitted that the modification to change allotment of final plot made in the preliminary scheme is of substantial nature which entails civil consequences to the person against whom such modification is to be made in the preliminary scheme and therefore, without affording hearing to the petitioners, no modification in the preliminary scheme affecting the right of the petitioner for allotment of the final plot could have been made. Mr. Desai thus urged to quash and set aside the modification made by the State Government for the plots allotted to the petitioners in preliminary scheme.
7. Learned Assistant Government Pleader Mr. Swapneshwar Gautam submitted that since TPO made change contrary to the provisions made in the draft scheme for allotment of the final plot to the petitioners in the preliminary scheme submitted to the State Government, the State Government was well within its power under Section 65 of the Act to make modification in preliminary scheme. Mr. Gautam submitted that it is not the case where the final plots allotted in preliminary scheme were the same in the draft scheme sanctioned by the State Government and the State Government made modification to allot different final plots. Mr. Gautam submitted that it was after the Chief Town Planner submitted report pointing out the error and irregularity committed by the TPO in the preliminary scheme in connection with different lands, including the plots allotted to the petitioners, the State Government found it necessary to make modification to correct the error and irregularity committed by the TPO. Mr. Gautam submitted that the petitioners were given opportunity to lodge their objections / suggestions as directed by this Court in First Round of Litigation and after considering the objections and suggestions made by the petitioners, the State Government took Page 5 of 28 HC-NIC Page 5 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT the impugned decision which may not be interfered with by this Court in exercise of the powers under Article 226 of the Constitution of India.
8. Learned advocate Mr. Pahwa submitted that in fact, there is no modification of any substantial nature in the preliminary scheme in the matter of allotment of final plot to the petitioners. Mr. Pahwa submitted that undisputably, in the draft scheme sanctioned, the petitioners were allotted Final Plot No.207 on their original plot, however contrary to the draft scheme, the TPO allotted four final plots to the petitioners at the prime location, which were made appropriate to be given to the authority for sale for commercial purpose. Mr. Pahwa submitted that by modification made by the State Government, the said four plots have now come to be allotted to the Area Development Authority for sale for commercial purpose and the petitioners are given final plot on their original plot with some lesser area. Mr. Pahwa submitted that when the petitioners have got final plot in their original plot, the petitioners are not prejudiced in any manner by modification made by the State Government in the preliminary scheme as it was found necessary for correcting the error and irregularity committed by the TPO. Mr. Pahwa submitted that when modification made by the State Government in the preliminary scheme for the land of the petitioners is not of substantial nature, it cannot be said that the State Government has no power to make such modification under Section 65 of the Act while sanctioning the preliminary scheme. Mr. Pahwa submitted that Section 65 of the Act does not contemplate giving of any hearing before making modification to correct error or irregularity in the preliminary scheme while sanctioning the preliminary scheme. Mr. Pahwa submitted that when statutory provision in Section 65 of the Act does not require giving of hearing and when objections/ suggestions of the petitioners were considered by the State Government as directed by this Court in the First Round of Litigation, it cannot be said that the impugned Page 6 of 28 HC-NIC Page 6 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT decision taken by the State Government is in breach of the principles of natural justice. Mr. Pahwa submitted that in the First Round of Litigation, the direction issued was to consider the objections/ suggestions of the petitioners and not to give personal hearing to the petitioners. Mr., Pahwa submitted that the petitioners have not made any grievance in the petition as regards giving of no hearing to them and have also failed to point out as to what prejudice is caused to them in absence of hearing. He therefore, urged to dismiss the petition.
9. The Court having heard learned advocates for both the sides finds that there appears to be no dispute about the fact that by modification made by the State Government in the preliminary scheme, the petitioners are allotted Final Plot No.294 on their original plot. When the draft scheme was sanctioned by the State Government, the petitioners were allotted Final Plot No.207 admeasuring 3900 Sq. Mtrs. in their original location. The final plot No.294 now allotted as per the modification in the preliminary scheme is having area of 3890 Sq. Mtrs. The difference of area in final allotment is very small. The TPO had decided to allot four different final plots admeasuring 3876 Sq. Mtrs., i.e. Final Plot No.107 admeasuring 1210 Sq. Mtrs., Final Plot No.224 admeasuring 688 Sq. Mtrs., Final Plot No.227 admeasuring 743 Sq. Mtrs. and Final Plot No.229 admeasuring 1235 Sq. Mtrs. in the preliminary scheme, at better location on the main road to the petitioners. Ordinarily, when a person is given final plot on his original plot in the draft scheme sanctioned by the State Government, no modification or change in such allotment need to be made by the TPO. In the present case, it was required of the TPO to make available the said four final plots having better location on the main road to the authority for sale for commercial purpose instead of marking Final Plot No.294 as sale for commercial purpose and that is what, the Chief Town Planner, Gujarat State has opined in his communication dated 1.2.2006 at Annexure-RI Page 7 of 28 HC-NIC Page 7 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT annexed with the Affidavit-in-Reply filed on behalf of respondent Nos.1 and 2. It is stated in the affidavit-in-reply dated 28.3.2017 that the State Government considered the opinion of the Chief Town Planner for the land of the petitioners and for other lands and thereafter the State Government decided not to accept the objections of the petitioners and sanctioned the preliminary town planning scheme with necessary modification vide notification dated 2.12.2010 which has become part of the Act under Section 65(3) of the Act.
10. Learned senior advocate Mr. Desai, however, submitted that for making any modification in exercise of the powers under Section 65 of the Act in the preliminary scheme, the State Government is to form its opinion that it is necessary, which requires active application of mind. He submitted that no reasons are recorded for making the impugned decision and without formation of opinion that the modification is necessary, the impugned decision is taken. He has relied on the decision in the case of Bhikhubhai Vitthalbhai Patel and others Vs. State of Gujarat and Another reported in (2008)4 SCC 144. The said decision is in the context of Section 17, especially Section 17(1)(a)(ii) Proviso of the Act. Section 17(1)(a)(ii) of the Act reads as under:-
17. Power of State Government to sanction draft development plan.
(1)(a)On receipt of the draft development plan under section 16, the State Government may, by notification,-
(i) ......
(ii) return the draft development plan and the regulations to the area development authority or, as the case may be, to the authorised officer, for modifying the plan and the regulations in such manner as it may direct:
Provided that, where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary, the State Government may, instead of returning them to the area development authority or, as the case may be, the authorised officer under this sub-clause, publish the modifications so considered necessary in the Official Gazette along with a notice in the prescribed manner inviting suggestions or objections from any person with Page 8 of 28 HC-NIC Page 8 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT respect to the proposed modifications within a period of two months from the date of publication of such notice;
Hon'ble Supreme Court has held and observed in para 21 to 26 and 32 as under:-
21. It is true the State Government is not bound by such opinion and entitled to take its own decision in the matter provided there is material available on record to form opinion that substantial modifications in the draft development plan were necessary. Formation of opinion is a condition precedent for setting the law in motion proposing substantial modifications in the draft development plan.
22. Any opinion of the Government to be formed is not subject to objective test. The language leaves no room for the relevance of a judicial examination as to the sufficiency of the grounds on which the Government acted in forming its opinion. But there must be material based on which alone the State Government could form its opinion that it has become necessary to make substantial modification in the draft development plan.
23. The power conferred by Section 17(1)(a) (ii) read with proviso is a conditional power. It is not an absolute power to be exercised in the discretion of the State Government, The condition is formation of opinion - subjective, no doubt - that it had become necessary to make substantial modifications in the draft development plan. This opinion may be formed on the basis of material sent along with the draft development plan or on the basis of relevant information that may be available with the State Government. The existence of relevant material is a pre-condition to the formation of opinion. The use of word "may" indicates not only a discretion but an obligation to consider that a necessity has arisen to make substantial modifications in the draft development plan.
It also involves an obligation to consider which are of the several steps specified in sub-clauses (i), (ii) and (iii) should be taken.
24. Proviso opens with the words "where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary ......" These words are indicative of the satisfaction being subjective one but there must exist circumstances stated in the proviso which are conditions precedent for the formation of the opinion. Opinion to be formed by the State Government cannot be on imaginary grounds, wishful thinking, however, laudable that may be. Such a course is impermissible in law. The formation of the opinion, though subjective, must be based on the material disclosing that a necessity had arisen to make substantial modifications in the draft development plan.
25. The formation of the opinion by the State Government is with Page 9 of 28 HC-NIC Page 9 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT reference to the necessity that may have had arisen to make substantial modifications in the draft development plan. The expression : "so considered necessary" is again of crucial importance. The term "consider" means to think over; it connotes that there should be active application of the mind. In other words the term "consider" postulates consideration of all the relevant aspects of the matter. A plain reading of the relevant provision suggests that the State Government may publish the modifications only after consideration that such modifications have become necessary. The word "necessary" means indispensable, requisite; indispensably requisite, useful, incidental or conducive; essential; unavoidable; impossible to be otherwise; not to be avoided; inevitable. The word "necessary" must be construed in the connection in which ft is used.
26. The formation of the opinion by the State Government should reflect intense application of mind with reference to the material available on record that it had become necessary to propose substantial modifications to the draft development plan.
32. We are of the view that the construction placed on the expression "reason to believe" will equally be applicable to the expression "is of opinion" employed in the proviso to Section 17 (1) (a) (ii) of the Act. The expression "is of opinion", that substantial modifications in the draft development plan and regulations, "are necessary", in our considered opinion, does not confer any unlimited discretion on the Government. The discretion, if any, conferred upon the State Government to make substantial modifications in the draft development plan is not unfettered. There is nothing like absolute or unfettered discretion and at any rate in the case of statutory powers. The basic principles in this regard are clearly expressed and explained by Prof. Sir William Wade in Administrative Law (Ninth Edn.) in the chapter entitled 'abuse of discretion' and under the general heading the principle of reasonableness' which read as under :
"The common theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely - that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms. The real question is whether the discretion is wide or narrow, and where the legal line is to be drawn. For this purpose everything depends upon the true intent and meaning of the empowering Act.Page 10 of 28
HC-NIC Page 10 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependents, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do none of these things it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good.
There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed."
Thus, applying the above principles of law though settled in the context of Section 17 of the Act, however for exercise of the powers under Section 65 of the Act, there has to be formation of opinion that modification is necessary for the purpose of correcting any error, irregularity or informality. Such would reflect the active application of mind for correction made in the preliminary scheme. As explained in the above decision, the word 'necessary' means indispensable, requisite, useful, incidental or conducive, essential, unavoidable. The word, 'necessary' must be construed in connection in which it is used.
11. In the affidavit-in-reply filed on behalf of respondent Nos.1 and 2 by one Shri Pankajkumar Kachralal Tuver, Senior Town Planner, Town Planning and Valuation Department, Gandhinagar dated 9.9.2016, it is stated that after the direction issued by this Court in earlier petition, the State Government has considered the representation and objections of the petitioners and after giving them due chance of hearing, it has issued notification dated 2.12.2010. It is further stated that the petitioners have failed to explain to the State Government why they are aggrieved when final plot is allotted at more or less in the same location of the original land of the petitioners. This deponent has also filed one more affidavit in reply Page 11 of 28 HC-NIC Page 11 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT dated 28.3.2017 and with such affidavit, has produced copy of the opinion of the Chief Town Planner, vide communication dated 1.2.2006. Though it is alleged that such opinion was given at the instance of MLA, however from the opinion, it appears that the opinion is not only about the land of the petitioners but for many other lands also. Therefore, simply because the representation of the MLA is considered, that would not be a ground to say that the Chief Town Planner was influenced by the representation of the MLA or that there was a political interference in taking decision by the State Government for making modification. Be that as it may, it could be seen from the proceedings taken for considering the representation and objections made by the petitioners, along with the objections of other persons, copy whereof is annexed with the affidavit-in-reply filed on behalf of respondent Nos. 1 and 2 of one Shri K.M. Panchal, Chief Town Planner of Gujarat State that the representation/ objections appeared to have been well considered by the State Government before issuing the notification dated 2.12.2010, sanctioning the preliminary scheme with modification. The consideration of the representation and the objections were put for final approval of the State Government and thereafter, notification dated 2.12.2010 was issued. As stated in the affidavit-in-reply on behalf of respondent Nos.1 and 2, the objections and suggestions were considered by the State Government before finalizing the modification and issuing notification dated 2.12.2010 sanctioning the preliminary scheme with modification. In the notification dated 2.12.2010, at Annexure-O, it is clearly mentioned that as per the order of the High Court passed in the petition preferred by the petitioners, the State Government has considered the representations made by the petitioners and other persons affected. In the affidavit filed on behalf of respondent Nos.1 and 2 by the Chief Town Planner, it is mentioned that the objections and suggestions were considered and hearing was afforded. Therefore, impugned decision of modification does not appear to be without application of mind or Page 12 of 28 HC-NIC Page 12 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT without reasons.
12. Learned senior advocate Mr. Desai however submitted that the State Government conveniently ignored the earlier opinion given by the Chief Town Planner to the Town Planning Officer on 28.1.2005, copy whereof is annexed at Annexure-K. The Court finds that there was no specific opinion on allotment of plots but the communication was addressed to the TPO towards consultation in connection with the proposal made by the Town Planning Officer. But, in the opinion given vide communication dated 1.2.2006, the Chief Town Planner has specially opined as to why not only for the plots allotted to the petitioners but for other lands also, modifications were required. In fact, such final opinion was much reliable in the context of exercising the powers under Section 65 of the Act by the State Government. It appears to the Court that when for no good reason, the TPO made changes of substantial nature contrary to the draft scheme sanctioned by the State Government, and when based on the opinion of the Chief Town Planner, the State Government found it necessary to make modification in the preliminary scheme, it cannot be said that without forming opinion as to the necessity to make modification in the preliminary scheme, the State Government has exercised powers under Section 65 of the Act. The TPO is appointed by the State Government under Section 50 of the Act and he is to act to serve the purpose of the town planning scheme and therefore, the State Government is given power under sub-section (2) to remove the TPO on the ground of incompetence or misconduct or any other good or sufficient reasons and to appoint another officer forthwith to function as TPO. The TPO is not expected to function as per his whims. As per Section 52(1), the TPO is to define and demarcate the area allotted to or reserved for any public purpose or for a purpose of appropriate authority and the final plots. To better serve the purpose of town planning scheme, the TPO was expected to allot four final plots of prime location for the purpose of the authority.
Page 13 of 28HC-NIC Page 13 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT
13. Section 65 authorizes the State Government to make modifications which in its opinion is necessary for the purpose of correcting an error, irregularity or informality in the preliminary scheme. Thus, it is not that the State Government has no power at all to make any modification in the preliminary scheme. Reading Section 65 in its true spirit, it appears that the legislature intended that for correcting any error or irregularity or informality committed by the TPO, if the State Government finds that the modification is necessary, it can certainly exercise powers under Section 65 of the Act. At this stage, if provisions made in Clause (xi) with proviso of sub-section (3) of Section 52 are referred, indication is given that the TPO is not only to draw the preliminary and final scheme in accordance with the draft scheme but if he is to make any modification of a substantial nature, he cannot make such modification except with previous sanction of the State Government and except after hearing appropriate authority and any owners who may raise objections. From such provisions, analogy could be drawn that as far as possible, the TPO has to make preliminary scheme and final scheme in accordance with the draft scheme and he cannot make variation as per his whims. But, if he deviates from the draft scheme, without any reason, it could be said to be irregularity committed by him and if the State Government is of the opinion that the modification is necessary for the purpose of correcting the irregularity committed by the TPO in the preliminary scheme, it can exercise powers under Section 65 of the Act.
14. The words 'Irregularity' and 'Informality' used in Section 65 are not to be taken as just mere procedural defect or simple mistake in the name of the person or in the description of the property as submitted by learned advocate Mr. Desai. The irregularity and informality meant to be corrected in exercise of the powers under Section 65 are more than mere procedural defect or simple mistake. Something which is disorderly done, not in conformity with the rule or done in deviation from the things approved, is a kind of irregularity or Page 14 of 28 HC-NIC Page 14 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT informality to be corrected under Section 65 of the Act.
15. As per the different meanings given in Oxford Dictionary, 'Irregularity' means (a) a breach of rule or principle; an irregular, lawless, or disorderly act, (b) lack of conformity to rule, law, or principle, deviation from what is usual or normal, abnormality, anomalousness. As per the Webster's Dictionary, 'Informality' means (1) the state of being informal; absence of formality, (2) an informal act. Informal means not according to the prescribed, official or customary forms; irregular, unofficial.
16. When the legislature makes specific provision in the Statute, it has to be given effect to serve the purpose for which it is so made. In making provision of Section 65, the legislature is taken to have intended not only to correct any kind of error but also to streamline the deviation made by the TPO from the provisions made in the draft scheme. The Court finds that the modification made by the State Government is not of substantial nature but it is to correct the irregularity and informality committed by the TPO in preliminary scheme after the State Government has reached to the satisfaction for such purpose.
17. Mr. Desai however submitted that even if the State Government was of the opinion that modification in the preliminary scheme was required for the land of the petitioners, the State Government should have sent back the matter to the TPO as the TPO is the final authority to frame and submit the preliminary scheme and to give effect to the preliminary scheme after it is sanctioned by settling the rights qua final plot allotted in the preliminary scheme. The Court however finds no substance in such submission as, when there is a clear provision under Section 65 authorizing the State Government to make modification, the State Government is not required to send back the preliminary scheme to the TPO for making any modification as found necessary by the State Government.
Page 15 of 28HC-NIC Page 15 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT Simply because, the TPO is to settle all the rights on re-constitution of the final plots, that would not be a ground to say that the State Government should only suggest modification in the preliminary scheme but modification is to be finalized by the TPO. In fact, as per Section 67 of the Act for settling the rights in the final plots, such rights could be settled by TPO after the State Government makes modification in the preliminary scheme in exercise of the powers under Section 65 of the Act.
18. As regards the contention that no hearing was afforded to the petitioners before taking final decision after the directions were issued by this Court in first round of litigation, it is required to note that this Court when disposed of the first petition preferred by the petitioners, directed that the preliminary town planning scheme sanctioned by the State Government with respect to the land of the petitioners shall be treated as notice inviting objections and suggestions and it was kept open for the petitioners and other parties to submit their objections and suggestions and the State Government was directed to take appropriate decision in accordance with law and on merits and after considering the objections and suggestions. There is no specific direction for affording hearing to the petitioners before taking decision. Mr. Desai would however submit that since the direction issued was to take appropriate decision in accordance with law, it could be said that the directions would include even giving of hearing to the petitioners. Mr. Desai relied on the judgment rendered by learned Single Judge of this Court in the case of Vasantben Vallabhbhai Golakiya and Anr. Vs. State of Gujarat and others rendered in Special Civil Application No.8300 of 2012 dated 25.2.2013, to submit that relying on the directions issued in the case of the petitioners in Special Civil Application No.26785 of 2007, learned Single Judge has held that opportunity of hearing is required to be given before making modification in the preliminary scheme in exercise of the powers under Section 65 of the Act. In the said case, Page 16 of 28 HC-NIC Page 16 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT the Court found that the State Government made substantial modification in the preliminary scheme by modifying the allotment of final plot No.145, whereby the petitioners therein were deprived of Final Plot No.145 which was allotted by the TPO in the preliminary scheme. It does not appear from the facts stated in the said case that the TPO made deviation from the draft scheme while preparing the preliminary scheme for changing allotment of the final plot. In the case on hand, the fact which could not be disputed is that the petitioners were allotted final plot in their original plot and change was made in the preliminary scheme by the TPO to allot four different final plots which are of the prime location and could be used by the authority for sale for commercial purpose. However, before making modification at the first instance, since the State Government did not give opportunity to the petitioners to make any representation or objections, the Court directed the State Government to consider the objections/ suggestions from the petitioners and then to take final decision.
19. In the affidavit-in-reply, it is stated that hearing was afforded to the petitioners. Mr. Pahwa submitted that nowhere in the petition, the petitioners have made grievance that they were not given hearing. Learned advocate Mr. Pahwa appears to be right when he submitted that nowhere in the petition, the petitioners have made any grievance about giving them no hearing. Therefore, in view of the reply affidavit and in absence of the grievance made in the petition, the submission as regards giving of no hearing to the petitioners cannot be accepted.
20. Learned Assistant Government Pleader Mr. Gautam submitted that when Section 65 does not provide for giving of hearing, such right of hearing cannot be read into Section 65. However, since the petitioners were given opportunities to make representations and submit their objections to the proposed modification in the preliminary scheme and when such representations and objections Page 17 of 28 HC-NIC Page 17 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT are considered before taking decision on the modification in the preliminary scheme, such would satisfy the principles of natural justice.
21. However, even if hearing is not afforded before taking decision on modification in the preliminary scheme, the question is whether the consideration of the representation made and objections raised by the petitioners before taking decision on modification by the State Government, would satisfy the principles of natural justice and whether non-hearing would vitiate or render the decision illegal if no prejudice is caused to the petitioners.
22. In the case of State Bank of Patiala and others Vs. S.K. Sharma reported in (1996)3 SCC 364, Hon'ble Supreme Court while examining the aspects as regards compliance of the principles of natural justice in the context of the action taken in service concerning the departmental inquiry, has observed in para 33 as under:-
33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee) :
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this : procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed.Page 18 of 28
HC-NIC Page 18 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived if, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar, (1994 AIR SCW 1050). The ultimate test is always the same, viz., test of prejudice or Page 19 of 28 HC-NIC Page 19 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/ regulations/ statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and not adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing." (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the stand- point of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.) (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of state or public interest may call for a curtailing or the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.
23. As stated above, the Government has considered the representation and objections of the petitioners before taking the decision on the modification in the preliminary scheme. Such would comply with at least one of the facets of principles of natural justice as the petitioners were given opportunities to make representation Page 20 of 28 HC-NIC Page 20 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT and raise objections against the proposed modification. The Court further finds in the facts of the case that even if hearing is not given before taking decision on the modification in the preliminary scheme, such would not vitiate or render the decision of the State Government on modification as there appears to be no prejudice caused to the petitioners.
24. As stated above, the petitioners were given final plot on their original plot in the draft scheme but, the TPO made change in such allotment in the preliminary scheme and alloted four different final plots to the petitioners at the prime location which could be utilized by the authority for sale for commercial purpose. By the modification, the Government brought the petitioners to the original position by allotting final plot on their original plot. The petitioners have failed to point out as to how they are prejudiced by such decision of the Government. The Court finds that the petitioners are not in anyway prejudiced as the Government has not shifted the allotment of final plot to the petitioners to altogether a different land. Therefore, even if hearing is to be given as held by learned Single Judge of this Court in the decision in the case of Vasantben Vallabhbhai Golakiya (supra), it is not going to make any difference.
25. In the case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and others reported in (2015)8 SCC 519, the test of prejudice in the context of following the principles of natural justice is explained by Hon'ble Supreme Court in para 20 to 22, 24 to 28, 35, 38 to 40, 42 and 44 as under:-
20. Natural justice is an expression of English Common Law.
Natural justice is not a single theory - it is a family of views. In one sense administering justice itself is treated as natural virtue and, therefore, a part of natural justice. It is also called 'naturalist' approach to the phrase 'natural justice' and is related to 'moral naturalism'. Moral naturalism captures the Page 21 of 28 HC-NIC Page 21 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT essence of commonsense morality - that good and evil, right and wrong, are the real features of the natural world that human reason can comprehend. In this sense, it may comprehend virtue ethics and virtue jurisprudence in relation to justice as all these are attributes of natural justice. We are not addressing ourselves with this connotation of natural justice here.
21. In Common Law, the concept and doctrine of natural justice, particularly which is made applicable in the decision making by judicial and quasi-judicial bodies, has assumed different connotation. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must given to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as 'natural justice'. The principles of natural justice developed over a period of time and which is still in vogue and valid even today were: (i) rule against bias, i.e. nemo iudex in causa sua; and (ii) opportunity of being heard to the concerned party, i.e. audi alteram partem . These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is duty to give reasons in support of decision, namely, passing of a 'reasoned order'.
22. Though the aforesaid principles of natural justice are known to have their origin in Common Law, even in India the principle is prevalent from ancient times, which was even invoked in Kautilya's 'Arthashastra'. This Court in the case of Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors.4explained the Indian origin of these principles in the following words:
"43. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy Government, recognised from earliest times and not a mystic testament of judge-made law. Indeed from the legendary days of Adam - and of Kautilya's Arthashastra - the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new- fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system".Page 22 of 28
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24. The principles have sound jurisprudential basis. Since the function of the judicial and quasi-judicial authorities is to secure justice with fairness, these principles provide great humanising factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even to those who have to take administrative decision and who are not necessarily discharging judicial or quasi-judicial functions. They are a kind of code of fair administrative procedure. In this context, procedure is not a matter of secondary importance as it is only by procedural fairness shown in the decision making that decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong.
25. This aspect of procedural fairness, namely, right to a fair hearing, would mandate what is literally known as 'hearing the other side'. Prof. D. J. Galligan5attempts to provide what he calls 'a general theory of fair treatment' by exploring what it is that legal rules requiring procedural fairness might seek to achieve. He underlines the importance of arriving at correct decisions, which is not possible without adopting the aforesaid procedural fairness, by emphasizing that taking of correct decisions would demonstrate that the system is working well. On the other hand, if mistakes are committed leading to incorrect decisions, it would mean that the system is not working well and the social good is to that extent diminished. The rule of procedure is to see that the law is applied accurately and, as a consequence, that the social good is realised. For taking this view, Galligan took support from Bentham6, who wrote at length about the need to follow such principles of natural justice in civil and criminal trials and insisted that the said theory developed by Bentham can be transposed to other forms of decision making as well. This jurisprudence of advancing social good by adhering to the principles of natural justice and arriving at correct decisions is explained by Galligan in the following words:
"On this approach, the value of legal procedures is judged according to their contribution to general social goals. The object is to advance certain social goals, whether through administrative processes, or through the civil or criminal trial. The law and its processes are simply instruments for achieving some social good as determined from time to time by the law makers of the society. Each case is an instance in achieving the general goal, and a mistaken decision, whether to the benefit or the detriment of a particular person, is simply a failure to achieve the general good in that case. At this level of understanding, judgments of fairness have no place, for all that matters is whether the social good, as expressed through laws, is effectively achieved."
Galligan also takes the idea of fair treatment to a second level of understanding, namely, pursuit of common good involves Page 23 of 28 HC-NIC Page 23 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT the distribution of benefits and burdens, advantages and disadvantages to individuals (or groups). According to him, principles of justice are the subject matter of fair treatment. However, that aspect need not be dilated upon.
26. Allan, on the other hand, justifies the procedural fairness by following the aforesaid principles of natural justice as rooted in rule of law leading to good governance. He supports Galligan in this respect and goes to the extent by saying that it is same as ensuring dignity of individuals, in respect of whom or against whom the decision is taken, in the following words:
"The instrumental value of procedures should not be underestimated; the accurate application of authoritative standards is, as Galligan clearly explains, an important aspect of treating someone with respect. But procedures also have intrinsic value in acknowledging a person's right to understand his treatment, and thereby to determine his response as a conscientious citizen, willing to make reasonable sacrifices for the public good. If obedience to law ideally entails a recognition of its morally obligatory character, there must be suitable opportunities to test its moral credentials. Procedures may also be thought to have intrinsic value insofar as they constitute a fair balance between the demands of accuracy and other social needs: where the moral harm entailed by erroneous decisions is reasonably assessed and fairly distributed, procedures express society's commitment to equal concern and respect for all."
27. It, thus, cannot be denied that principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non- instrumental terms.
28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem , have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not.
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35. From the aforesaid discussion, it becomes clear that the opportunity to provide hearing before making any decision was considered to be a basic requirement in the Court proceeding. Later on, this principle was applied to other quasi- judicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary. It was, thus, observed in A. K. Kraipak's case that if the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries. In the case of Maneka Gandhi v. Union of India and Anr. also the application of principle of natural justice was extended to the administrative action of the State and its authorities. It is, thus, clear that before taking an action, service of notice and giving of hearing to the noticee is required. In Maharashtra State Financial Corporation v. M/s. Suvarna Board Mills and Anr.14, this aspect was explained in the following manner:
"3. It has been contended before us by the learned counsel for the appellant that principles of natural justice were satisfied before taking action under Section 29, assuming that it was necessary to do so. Let it be seen whether it was so. It is well settled that natural justice cannot be placed in a straight- jacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the action as made known is contemplated. No particular form of notice is the demand of law: All will depend on facts and circumstances of the case."
38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the Courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straight-jacket formula . It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the Courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other Page 25 of 28 HC-NIC Page 25 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the Courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.
39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straight-jacket formula , the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason - perhaps because the evidence against the individual is thought to be utterly compelling - it is felt that a fair hearing 'would make no difference' - meaning that a hearing would not change the ultimate conclusion reached by the decision-maker - then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corporation, who said that:
"A.... breach of procedure...cannot give (rise to) a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain'.
Relying on these comments, Brandon LJ. opined in Cinnamond v. British Airports Authority that:
"....no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing'. In such situations, fair procedures appear to serve no purpose since 'right' result can be secured without according such treatment to the individual.
40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the Courts. Even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of 'prejudice'. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing.
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42. So far so good. However, an important question posed by Mr. Sorabjee is as to whether it is open to the authority, which has to take a decision, to dispense with the requirement of the principles of natural justice on the ground that affording such an opportunity will not make any difference? To put it otherwise, can the administrative authority dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is contemplated? Answer has to be in the negative. It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. The opportunity of hearing will serve the purpose or not has to be considered at a later stage and such things cannot be presumed by the authority. This was so held by the English Court way back in the year 1943 in the case of General Medical Council v. Spackman. This Court also spoke in the same language in the case of The Board of High School and Intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.23, as is apparent from the following words:
"7. The learned counsel for the appellant, Mr. C. B. Aggarwal, contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show-cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show cause notice. We are unable to accept this contention. Whether a duty arises in a particular case to issue a show-cause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed."
44. At the same time, it cannot be denied that as far as Courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the action is taken. This was so clarified in the case of Managing Director, ECIL itself in the following words:
"31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and given the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set Page 27 of 28 HC-NIC Page 27 of 28 Created On Tue Jun 06 01:22:52 IST 2017 C/SCA/16299/2010 CAV JUDGMENT aside the order of punishment on the ground that the report was not furnished as it regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment."
26. In light of the above, when the Court finds in the facts of the case that no prejudice is caused to the petitioners even if no hearing was given to them before taking decision on the modification in the preliminary scheme by the State Government, it will not vitiate or render illegal the decision of the State Government of making modification in the preliminary scheme concerning the final plot allotted to the petitioners. The Court finds no merits in any of the contentions raised on behalf of the petitioners. The petition is therefore, required to be dismissed. It is accordingly dismissed. Rule discharged. Interim relief, if any, stands vacated.
Sd/-
(C.L. SONI, J.) Omkar After pronouncement of the judgment, a request is made to continue the interim relief in operation for a period of four weeks. Such request is opposed by learned advocates for the respondents.
However, the Court finds that to enable the petitioners to carry the matter before the Higher Forum, the interim relief in operation should continue for a further period of two weeks. It is ordered accordingly.
Sd/-
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