National Green Tribunal
Ashish Rajanbhai Shah vs Union Of India Ors on 11 July, 2013
Author: Swatanter Kumar
Bench: Swatanter Kumar
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
..............
APPEAL NO. 30 of 2013
In the matter of :
1. Ashish Rajanbhai Shah,
Resident of 154, Pritam Society
Bharuch, Gujarat.
.....Appellant
Versus
1. Union of India
Through its Secretary
Ministry of Environment and Forests
Paryavaran Bhawan, CGO Complex
Lodhi Road, New Delhi-110 003.
2. State of Gujarat
Through its Secretary
Department of Environment
Govt. of Gujarat
Blok No. 14/8
New Sachivalaya
Gandhinagar
3. Mr. B.J. Soni
Deputy Collector Jambusar
Gujarat
.......Respondents
Page 1 of 26
Counsel for Appellant :
Mr. A.K. Prasad Advocate, and
Mr. Harshvardhan Jha, Advocate.
Counsel for Respondents :
Ms. Neelam Rathore, Advocate with Ms. Syed Amber, Advocate,
Mr. S. Panda for H. Wahi, Advocate for Respondent No.1
ORDER
CORAM :
Hon'ble Mr. Justice Swatanter Kumar (Chairperson) Hon'ble Mr. Justice U. D. Salvi (Judicial Member) Hon'ble Dr. D.K. Agrawal (Expert Member) Hon'ble Dr.G.K. Pandey (Expert Member) Hon'ble Prof. A.R. Yousuf (Expert Member) Dated: July 11, 2013 JUSTICE SWATANTER KUMAR (CHAIRPERSON)
1. The National Green Tribunal Act, 2010 (for short "the NGT Act") came into force on 18th October, 2010. As per the Act, under Section 16(g) any direction issued on or after commencement of the Act under Section 5 of the Environment (Protection) Act, 1986 (for short "the Act") is appealable before this Tribunal. The appeal can be filed by any person aggrieved from issuance of such Page 2 of 26 direction. The present appellant being aggrieved from the direction issued by the Collector, Bharuch, Gujarat dated, 26th February, 2013 has preferred the present appeal. The said order reads as under:
"No. Bhumi/S.I./Vashi/1555 Collector Office, Chitnis Branch Bharuch Dated 26-2-2013.
To.
1. Rajendra K. Goyal, residing at 8, MohanKrupa Society, Opp. Jain Temple, Manjalpur, Vadodara,
2. Ashish Rajanbhai Shah, residing at 154, Pritam Society-1, Bharuch.
3. Amishaben Thakorbhai Patel, residing of Gajera, Taluka Jambusar.
Sub:- Regarding damage to Mangrove trees in the land allotted for Salt Industry in C.R.Z. Area.
"It is hereby being informed to you that you have been allotted on Rental Lease Agreement basis, the unnumbered land, out of the lands of Block Nos. 1639 and -1640 Paiki, situated in Mauje village Nada, Taluka Jambusar, District Bharuch. Because of Construction of Obstructing mud-walls in the Sea Belt, the natural flow of sea water has stopped and hence, damage is being caused to the Mangrove Trees. Hence, it is hereby Page 3 of 26 informed to you immediately make open the natural Sea Belt for the natural flow of the sea water, with a view to see that the sea waters can naturally flow to the Mangrove Trees and thereby, the damage being caused to the Mangrove Trees is stopped.
Kindly implement the above instruction immediately and thereafter, intimate to this office.
Sd/- Illegible Collector Bharuch"
2. The above order interalia but primarily is challenged on the following grounds:-
(i) The impugned order suffers from the infirmity of non-
application of mind. The authority has acted contrary to the principles of natural justice and has not felt the need to dwell upon the various contentions that have been raised by the appellant in its reply dated, 4.2.2012 and 10.2.2012 respectively.
(ii) The Collector on the one hand has failed to deal with the contentions of the reply filed on behalf of the appellant, while on the other hand has also failed to record any reason for passing the impugned order.
(iii) The land and the activity of the appellant fell in CRZ (I) and not CRZ (III) for which the appellant had produced Page 4 of 26 records but they have been completely ignored by the Collector while passing the impugned order in the present appeal.
3. Now, we may refer to the basic facts giving rise to the present appeal. Vide order no. Bhumi/S.I./Vashi/227 dated, 27th January, 2011, the Collector had allotted 300 acres of land to the appellant for the purpose of establishing the salt industry. According to the appellant, prior to the passing of the order, the Collector, Bharuch had called for the necessary opinion from various relevant departments and it was subsequently recommended to allot the said land to the appellant for the said purpose. Actual measurement on the site of the plan had been carried out to demarcate the said land. This land was given on lease and the appellant had deposited the ground rent of Rs. 39,600/- by a challan dated, 03.06.2011 and also deposited Rs. 2000/-, the amount of the deposit on 7th April, 2009. The appellant also claims to have deposited the local fund amount of Rs. 99,000 payable upon the rent amount and education cess of Rs. 9,900 with the Talati cum Mantri, before actual possession of the land was handed over to the appellant. The lease in favour of the appellant was granted with certain Terms and Conditions and Page 5 of 26 it was stated in the order of the Collector, which contained 47 Terms and Conditions, that if the appellant fails to follows any condition therein or any condition that is added by the Government later, then the lease contract would automatically terminate without any intimation to the appellant and the compensation as well as the deposit amount would be retained by the Government as well. Prior to this, the Additional Industrial Commissioner, District Gandhinagar vide its order dated 8 February, 2008, had informed the District Collector Bharuch as follows:-
"This is to inform you that there is no need for the Salt producing unit in the District to obtain any C.R.Z. Certificate from the Forests and Environment Department. Hence, the information related to the Revenue villages as well as showing their limits, may kindly be sent directly to the Deputy Salt Commissioner.
4. The appellant in order to carry out its activity of salt industry had made the bunds around the land so as to collect brine water in the crystallizers for solar evaporation, till salt deposition took place. Thereafter, the deposited salt is scrapped from the crystallizer and collected at the platform before the salinity increases beyond 280 Be. The entire process takes 45 Page 6 of 26 days' time and it is a continuous seasonal process. Salt is manufactured from sea brine or subsoil brine, of the salinity ranging from 20 to 80 Be.
5. Gujarat Ecological Commissioner, vide letter dated 28th August, 2012, had written to the Principal Secretary, Forest and Environment Department, Government of Gujarat, Gandhinagar and stated that upon conducting the spot verification in salt leases, some of the mangrove trees 'seem' to have been damaged during the bund work. It was also mentioned therein that as per the provisions contained in the CRZ Notification, setting up of new industries and expansion of existing industries is prohibited. The Member Secretary of the said Commission stated that upon spot verification, the salt manufacturing activity was being carried out and bunds had been constructed by removing of soil and some of the mangrove trees seemed to have been damaged during the digging of bunds.
(emphasis supplied by us)
6. Further it also referred to the fact that about 8 creeks of smaller and bigger sizes are blocked due to construction of the bund and an apprehension was expressed that mangrove trees Page 7 of 26 are likely to be destroyed in future as well. In the provisions and conditions of CRZ Notification Para 7(i), it was stated that part of area falls under the category of CRZ (I).
7. The Collector issued a Notice dated 4th December 2012, directing the appellant to stop all the activities which were allegedly resulting in the damage to mangrove trees. This notice had made a reference to the letter of the Gujarat Ecology Commission dated 28.08.2012. However from the language and contents of this letter it appears that the copy of the said notice was annexed with the said notice. Notice dated 4.12.2012 reads as under:
"No. Bhumi/S.I/Vashi/63 Collector Office, Chitnis Branch, Bharuch Dated 4-12-2012.
To Shri B.J. Soni Deputy Collector Jambusar.
Sub:- Regarding damage to Mangrove Trees in the land allotted for salt Industry Ref:- Letter No. GEC/T/-14/2384-88 dt. 28-8-2012 of the Member Secretary, Gujarat Ecology Commission, Gandhi Nagar.Page 8 of 26
In context to the above cited subject, vide the letter referred to hereinabove, a representation is made before this office regarding the damage to the Mangrove Trees because of digging of the mud for using it for the purpose of construction obstruction mud walls in salt pans in the unnumbered saline waste land allotted, adjacent of Revenue Survey No. 1639/1640 for salt Industry at Mauje Village Nada, Taluka Jambusar. In the said letter, instructions have been given to stop all the activities damage the mangrove trees by the lease holder in the said Rental lease land allotted for salt Industry.
Hence, as per the below mentioned details, instructions are hereby being given to initiate all the necessary steps for immediately upon receipt of this letter, for stopping all the activities damaging the Mangroves trees by the lease holder in the said Rental lease land allotted for Salt Industry. Since the Report containing all the steps initiated by you is to be produced before the Government, you are informed to immediately send your Report for the Steps initiated by you.
SN Name and Village/ Revenue Order
Address Taluka Survey No.
No./ and
Measureme Date
nt
1. Rajendra K. Nada, Tal. 350 Acres Bhumi/
Goyal, Jambusar out of the S.I./J.F
residing at 8, unnumbere ./
Mohamkrupa d relevant Vashi/9
Society, Opp. of 1639 935
Jain Temple, dt. 11-
Manjalpur, 11-
Vadodara 2011
2. Ashish Nada, Tal. 300 Acres Bhumi/
Rajanbhai Jambusar of the S.I./J.F
Shah, residing unnumbere ./
at 154, Pritam d relevant Vashi/2
Society-1, of 1640 27
Bharuch dt. 21-
1-2011
Page 9 of 26
3. Amishaben Nada. Tal. 300 Acres Bhumi/
Thakorbhai Jambusar out of the S.I./J.F
Patel, residing unnumbere ./
of Gajera, d relevant Vashi/3
Taluka of 1639 754
Jambusar dt. 7-6-
2011
Further in respect of all other leases of this village:-
1. to stop immediately all the activities damaging the Mangrove trees in and around the tidal land region, to see that the sea passage and passage of natural tidal flows are not stopped, and if any such activities are done without the permission of the Competent officers, then it shall be considered as the violation the Notification of C.R.Z and hence, all such activities should be stopped.
2. Further, if any activities of construction of any types of obstructing walls are going on in the C.R.Z. areas, then it hereby informed stop the same.
Sd/- Illegible Deputy collector, Jambusar.
No. Bhumi/Vashi/2221 Mamlatdar Officer, Jambusar"
8. According to the appellant, though this was said to be a notice but in fact it was only a direction to stop all activities. The letter had called for the reports from the Collector and copy thereof was also addressed to three other parties all of whom have also preferred an appeal before the Tribunal.
9. A detailed written reply was made by the appellant to the District Collector and he took various pleas in the said reply. Page 10 of 26 While denying that the applicant had violated the notification and damaged the environment or any mangrove trees, a specific plea was taken that the mangrove trees provided a benefit to the salt industries and thus, the appellant could never damage such trees. It was for the reason that these mangrove trees also protected the mud walls which were erected by the salt industry. However, when there is a high tide which is forceful, then it uproots these mangrove trees. Hence, no damage or destruction of mangrove trees is caused by the appellant. The Sarpanch of the village, after inspection of the site had also issued a certificate dated, 8.9.2012 stating that there was no damage done to the mangrove trees by the salt industry of the appellant, while referring to erection of mud bunds it was said that they were erected strictly in consonance with the terms and conditions laid down in the lease order. Also it was stated that the mud bunds were erected at a distance of 700 meters from the sea and did not cause any damage to the natural sea water. As far as violation of Condition No. 42 was concerned, it was stated in the reply that no permission was required to be obtained from the CRZ Authority in view of the letter of the Additional Industrial Commissioner as aforestated. This was a detailed reply and it Page 11 of 26 also stated that the direction to stop all activity was issued to the appellant without affording any opportunity. Thus, on the interim prayer made by the appellant for stay of the operation of notice- cum-direction dated 4th December, 2012, the Additional Secretary had granted the order of stay on 21st December, 2012.
10. Again on 28st January, 2013, a notice was issued to all the three parties to remain present on the date of hearing on 31st January, 2013 at 12.00 p.m., and respond to the allegations made therein. This notice also referred to the letter dated 4th December, 2012, as a show cause notice. The parties in response to the said notice appeared, and filed another reply dated 4th February, 2013, wherein such allegations were denied.
11. Thereafter, the Collector passed the order dated, 26th February, 2013, as afore referred, compelling the appellant to file the present appeal on the grounds stated supra.
12. We think it will be appropriate for us to discuss all the three grounds raised by the appellant together as they are inter- connected and would require common discussion.
13. At the very outset, we may notice that as far as the plea that the impugned order having been passed without affording an Page 12 of 26 opportunity to show cause against the proposed order is concerned, the same deserves to be rejected. From the pleadings of the s in the plea as well as in the documents annexed thereto, it is clear that the notice-cum-direction dated 4th December, 2012 was served upon the appellant before the notice dated 28th January, 2013, had been served and duly received by the appellant. The appellant had not only received the said notice but has also filed a detailed reply/representation against such notices. The appellant thereafter, filed a representation before the Authority which then passed the order dated 26.2.2013. In view of this matter, appellant has been served with a show cause notice and an opportunity of hearing was provided to him before the impugned order was passed. Thus, this contention of the appellant deserves to be rejected.
14. The next contention that we have to consider on behalf of the appellant is that there is non-application of mind and non- recording of reasons by the authority while passing the impugned order. Further, it is also contended that there is no consideration of relevant evidence, relevant materials and documents placed on record have not been considered by the authority. Page 13 of 26
15. We may now refer to certain judgments on the point that an administrative authority is also required to record reasons as to show proper application of mind and the orders being in conformity with the basic rule of law. In the case of State of West Bengal & Anr Vs Alpana Roy & Ors. 2005(8) SCC 296 while dealing with the order of the High Court which had not provided for reasons in support of its order, the Supreme Court held that High Court was in error in not recording reasons as it denied an opportunity to the affected parties before the Appellate Court and also referred to the necessity of providing reasons by the authority. The Apex Court held under:-
"7. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable.
8. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148 observed "The giving of reasons is one of the fundamentals of good administration".
In Alexander Machinery (Dudley") Ltd. v. Crabtree 1974 LCR 120 it was observed:
"Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in Page 14 of 26 question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the 'decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review, in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx"."
is ordinarily incongruous with a judicial or quasi- judicial performance
16. In the case of Anil Kumar Vs Presiding Officer & Ors 1985 (3) SCC 378 the Court stated that it is a well settled norm that a disciplinary enquiry or a quasi-judicial enquiry has to be conducted in accordance with the principles of natural justice. An enquiry report in a quasi-judicial enquiry must show the reasons for arriving at a particular conclusion.
17. The Apex Court describing 'reasons' as the hallmark of exercise of judicial power, further elucidated upon the same to be described as an essential requisite of principles of natural justice in the case of Secretary and Curator, Victoria Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity & Ors 2010 (3) SCC 732 Page 15 of 26 "40. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind." Vide State of Orissa v. Dhaniram Luhar : AIR 2004 SC 1794;
and State of Rajasthan v. Sohan Lal and Ors. :
(2004) 5 SCC 573.
42. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. VideRaj Kishore Jha v. State of Bihar and Ors. : AIR 2003 SC 4664; Vishnu Dev Sharma v.
State of Uttar Pradesh and Ors.: (2008) 3 SCC 172; Steel Authority of India Ltd. v. Sales Tax Officer, Rourkela I Circle and Ors. : (2008) 9 SCC 407; State of Uttaranchal and Anr. v. Sunil Kumar Singh Negi :
AIR 2008 SC 2026; U.P.S.R.T.C. v. Jagdish Prasad Gupta : AIR 2009 SC 2328; Ram Phal v. State of Haryana and Ors. : (2009) 3 SCC 258; Mohammed Yusuf v. Faij Mohammad and Ors. : (2009) 3 SCC 513; and State of Himachal Pradesh v. Sada Ram and Anr. : (2009) 4 SCC 422.
43. Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know, as why his application has been rejected."
18. We may also refer to a recent Judgment of this Tribunal in Application No. 49 of 2012 M/s. Sesa Goa Ltd & Anr. Vs. State of Page 16 of 26 Goa & Ors. decided on 11th April, 2013 wherein the Tribunal while considering similar issue stated the necessity for recording of such reasons on the one hand and its consequences thereof on the other.
19. Of course, reasons recorded by such authorities may not be like judgments of courts, but they should precisely state the reasons for rejecting or accepting a claim which would reflect due application of mind. The Bombay High Court in the case of Pipe Arts India Pvt. Ltd v. Gangadhar Nathuji Golmare, 2008 (6) MLJ 280 held:-
"Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court.
Announcing reasons can also provide public understanding of how the numerous decisions of the system are integrated. In a busy Court, the reasons are an essential demonstration that the Court did in fact fix its mind on the case at hand. An unreasoned decision has very little claim to acceptance by the defeated party, and is difficult or impossible to accept as an act reflecting systematic application of legal principles."
20. In a Constitutional Bench of Supreme Court, in the Case of SN Mukherjee Vs. Union of Inida (1990) 4 SCC 594 the Supreme Court stated that A party appearing before the Tribunal is entitled to know, either expressly or inferentially Page 17 of 26 the reasons stated by the Tribunal, and what it is to which the Tribunal is addressing its mind.
21. The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record. It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under Article 226 or the appellate jurisdiction of this Court under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person.
22. Another very important aspect of recording of reasons by administrative or quasi-judicial authority is that the reasons so recorded must have a nexus and should deal with the grounds which have been raised by the affected party for consideration by such authority. Recording reasons without dealing with such contentions would tantamount to non- recording of reasons. The authority concerned is expected to apply its mind to all aspects of a case but most importantly to the contentions raised by the affected party in relation to the grounds or supporting arguments without which no adverse order could be passed against such party. If such grounds are not dealt with in the order passed by the authority, Page 18 of 26 neither the party nor the appellate authority would be able to comprehend as to why their contentions have been rejected, as the reasons are harbinger between the mind of the maker of the order, to the controversy in question and the decision or conclusion arrived at. This is the acid test for examining fair opportunity and proper application of mind by the authority concerned.
23. In the present case, as it appears from the record before this Tribunal, there were three main allegations against the appellant.
A. The mud bunds constructed by the appellant were illegal and likely to cause damage to the mangrove trees.
B. Appellant had violated 'Condition 42' of the Terms and Conditions of the lease and had not obtained the permission of CRZ or from the Concerned Environmental Department.
C. The appellant was carrying out a prohibitory activity in terms of Notification dated 6th January, 2011, and was causing damage to the Environment.
24. Firstly, we must notice that there is nothing on record to show that the copy of the letter of the Gujarat Ecological Commission dated 21st August, 2010, was furnished to the Page 19 of 26 appellant to enable him to offer his comments to the contentions, thereof. Furthermore, the notice dated 4th December 2012 contained no grounds. It merely directed to close the bund work. However, the communication dated 28th February, 2013, contains certain allegations though none of them were required to be answered by the appellant. The appellant had submitted a detailed reply and documents in support thereof. The contention of the appellant is that in terms of 'condition 20' of the Terms and Conditions of his lease, it was mandatory for him to build structures for the protection of the salt bunds. It was in furtherance, to such conditions of the lease that the appellant built the mud bund. How the fault was attributable to the case of Anil Kumar Vs Presiding Officer & Ors 1985(3) SCC 378 is therefore, not clear, and in any case, there is no discussion or reasoning in the impugned order on that behalf. In relation to violation of 'Condition 42' which reads as under:
"(42) Should take prior permission regarding Costal Regulation Zone (C.R.Z) and environment from the concern Department of Government."
25. The appellant therefore, require to take permission regarding CRZ from the concerned department. According to the Page 20 of 26 appellant, it is contended that the area in question falls under CRZ (III) and the activity of salt industries was not required to take any permission from the CRZ authority. In this regard the appellant had relied upon the letter of the Additional Industry Commissioner, State of Gujarat, dated 8.2.2008, authored by the Additional Industrial Commissioner, Gandhi Nagar, stating that there was no need to obtain any CRZ certificate from the Forest and Environment Department. The documents and the averments made by the appellant clearly show that the appellant had violated the 'Condition 42' of the Terms and Conditions of the lease. It was expected of the authority to record reasons in that regard to refer the matter that led to unjust view taken by the Collector. In fact, the impugned order is totally silent even in this regard. Lastly the allegation related to causing immense pollution and damage to mangrove trees. In this regard, the appellant had rendered detailed reply on record for the consideration of the Collector. None of the points pleaded by the appellant, in his reply has been dealt with by the Collector in the impugned order. According to the appellant the mud bunds in fact would help in maintaining the mangrove trees as they are likely to be eradicated because of high tide. It was also their case Page 21 of 26 that the sea water was not obstructed entirely to reach the mangrove trees, thus, neither there was threat to Mangrove trees nor there was threat to environment by the activities carried out by the appellant. According to them they were interested to protect the mangrove trees along with carrying on of their activities.
26. In addition to this, it was also the case put forward by the consideration of the Collector that to some extent they were also pumping water and using the same for the manufacture of salt.
27. Unfortunately even this issue finds no deliberation in the order impugned.
28. The Department of Environment and Forests has issued a CRZ Notification dated 6.1.2011. It defines the prohibited activities within CRZ as well as the activities which could be carried out in the said zone. 'Clause 7' of the said Notification makes the classification of CRZ into CRZ (I), CRZ (II), CRZ (III) and CRZ (IV). Even under CRZ (I) under clause ii (d) salt harvesting by solar evaporation of sea water is a permissible activity. The CRZ (III) declares an area of up to 200 meters of high tide line to be no development zone. However, certain Page 22 of 26 exceptions have been carved thereto, including that under clause
(iii)(d) salt manufacturing from the sea water is permissible in the no development zone. The Authority has accepted to deliberate the plan upon these technical issues with some elucidation. The impugned order dated 28th March, 2013, is patently unsupported by reasons and demonstrated non-application of mind. The order itself does not discuss any of the grounds except vaguely mentioning that there is likelihood of damage to the mangrove trees. Even the letter of the Gujarat Ecological Commission dated. 28.8.2012, had noticed that some of the mangrove trees seem to have been damaged. In other word even if the impugned order is taken on its face value even then it was clearly based upon an apprehension and not on any definite finding which could form basis for passing of such a prohibitory order like the impugned order.
29. An administrative authority and Tribunal are obliged to give reasons and absence whereof could render the order liable to judicial chastise. The order passed by the authority should give reasons for its consequences and must show proper application of mind. Violation of either of them could in the given facts and circumstances of the case vitiate the order itself. An order of an Page 23 of 26 administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality. The distinction between an order passed by administrative authority or a quasi-judicial authority has practically extinguished and both are required to pass well reasoned orders. (Reference: Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Vs. Shukla and Brotherscourt (2010)4SCC785.
30. While exercising such powers the concerned authority is expected to record satisfaction objectively. Thus, such satisfaction could only be expressed by recording of reasons. It will be appropriate to take action on an order which records no reasons and consequently no satisfaction thereof. If fact even in case requiring recording of subjective satisfaction, recording of reasons would be imperative, the content thereof however, may differ. It is not sufficient to record as to which condition had been violated. It must state as to how the condition had been violated and what is the effect of the explanation rendered by the affected parties and how the same was unsatisfactory. Then alone the authority would determine as to what should be the consequential order and what is required to be done by the Page 24 of 26 authority, and the same however has not been complied with in the present case.
31. Recording of reasons even help in balancing the question of onus. If the order records reasons which reflect satisfaction, then the onus is on the person challenging it to show that such reasons are unsuitable and improper. But in absence of such reasons the applicant discharges primary onus only by raising a challenge against such an order and such challenge could include non-recording of reasons, non-application of mind and patent arbitrariness. Then it is for the authority concerned to meet such challenge and to show that there were valid grounds in passing the impugned order. In the present case, the order does not contain any reasons, furthermore nothing has been reflected by the respondent on the file of the Tribunal to show that there were any plausible reasons to the explanation rendered by the appellant.
32. For the reasons aforestated, we see no reason to sustain the order dated 26.2.2013. We thereby allow the appeal and quash the impugned order. We further direct the Collector, Bharuch, Gujarat to provide a hearing to the appellant, considering all relevant documents produced by them and pass an order afresh Page 25 of 26 in accordance with law expeditiously and in any case not later than 3 months from the date of passing of this order. In the fact and circumstance of the case we leave the parties to bear their own costs.
Justice Swatanter Kumar (Chairperson) Justice U. D. Salvi Judicial Member Dr. D.K. Agrawal Expert Member Dr.G.K. Pandey Expert Member Prof. A.R. Yousuf Expert Member New Delhi July 11, 2013 Page 26 of 26