Jharkhand High Court
Dr. B.P. Sinha (Binod Prasad Sinha) Aged ... vs Ranchi Municipal Corporation Through ... on 8 May, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 2236 of 2018
Dr. B.P. Sinha (Binod Prasad Sinha) aged about 74 years, son of Late
Dwarika Nath Sinha, resident of D-2, Sarover Enclave, Raja Bagan,
Kanke Road, P.O.-Kanke Road, P.S.-Gonda, District-Ranchi... Petitioner
Versus
1. Ranchi Municipal Corporation through Chief Executive Officer,
Ranchi
2. Municipal Commissioner, Ranchi Municipal Corporation, Ranchi
3. Town Planner/In-charge, Legal Section, Ranchi Municipal
Corporation, Ranchi ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Siddhartha Ranjan, Advocate For the Respondent-RMC : Mr. Ray Rajat Nath, Advocate
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Order No. 02 Dated: 08.05.2018 The present writ petition has been filed for quashing the order dated 27.03.2018 as contained in memo no. 497 dated 19.04.2018 issued by the respondent no. 2 - the Municipal Commissioner, Ranchi in U.C. Case No. 125 of 2015 (Annexure-5 to the writ petition), whereby a penalty of Rs. 50,000/- has been imposed upon the petitioner with a further direction to demolish the non-condonable deviation of 22% in rear side of the building as per the building plan which was already sanctioned and regularised previously under the provisions of Jharkhand Regularization of Unauthorized/Deviated Constructions through Regularization Fee in Urban Areas Act, 2011 and thus, any subsequent proceeding initiated and the order passed under the Jharkhand Municipal Act, 2011 (hereinafter referred to as "the Act, 2011") is illegal and non est in the eye of law.
2. The learned counsel for the petitioner submits that the petitioner purchased a house with land by way of a registered sale-deed dated 02.07.1996 from the Ranchi Planners' Co-operative Society Ltd., Ranchi having an area of 2.88 katthas/2077 sq.ft. with a built up area of 1000 sq.ft. situated at Village-Kathargonda, P.S.- Gonda, Khata No. 134, Plot No. 594, Municipal Holding No. 296/F18 of Ranchi Municipal Corporation. On getting the possession of the said 2 House No. D-2, the petitioner got the land mutated in his name vide Mutation Case No. 225/R27/12-13 and a correction slip was also issued on 18.08.2012. The petitioner also got the electrical connection in the said premises. Since then, the petitioner has been paying the holding tax to the Ranchi Municipal Corporation regularly. It is further submitted that the State Government with a view to regularize certain types of unauthorized constructions, came out with a legislation namely, Jharkhand Regularization of Unauthorized/Deviated Constructions through Regularization Fee in Urban Areas Act, 2011 (hereinafter referred to as "the Jharkhand Regularization Act, 2011") and in view of the said Act, the petitioner applied and submitted the requisite fee of Rs. 25,545/-. A receipt to that effect was issued to the petitioner on 08.08.2012 (Annexure-1 to the writ petition). Thereafter, regularization of the said building was made by the order of the Chief Executive Officer which was issued under the signatures of the Deputy Chief Executive Officer, Law Advisor as well as the Town Planner dated 18.06.2013 and 27.06.2013 respectively (Annexure-2 to the writ petition). The main contention of the learned counsel for the petitioner is that the respondent no. 2 vide impugned order dated 27.03.2018, though acknowledged the Jharkhand Regularization Act, 2011, yet without discussing as to why regularization made by the authorities of the Ranchi Municipal Corporation under the said Act would not be acceptable, passed the said order dated 27.03.2018 against the petitioner. It is further submitted that the impugned order dated 27.03.2018 passed by the respondent no. 2 is without jurisdiction as the said authority could not have initiated a subsequent case for unauthorised construction/deviation made in the building once the same has been regularised under the Jharkhand Regularization Act, 2011.
3. The learned counsel for the respondent-Ranchi Municipal Corporation submits that the impugned order dated 27.03.2018 passed by the respondent no. 2 is completely justified as he has taken note of the fact that there has been non-condonable deviation of 22% in rear side of the building.
4. Heard the learned counsel for the parties and perused the 3 contents of the writ petition. The case of the petitioner is that once the unauthorized construction/deviation made in the building in question has been regularized under the Jharkhand Regularization Act, 2011, the respondent no. 2 had no authority to initiate another case for unauthorized construction against the petitioner. On perusal of the impugned order dated 27.03.2018 contained in memo no. 497 dated 19.04.2018, it appears that though the respondent no. 2 takes note of the fact that the building plan has been accepted under the Jharkhand Regularization Act, 2011, yet without discussing as to why the said regularization earlier made by the authorities of the Ranchi Municipal Corporation under the said Jharkhand Regularization Act, 2011 has not been accepted by him and he proceeded to impose penalty of Rs. 50,000/- with further direction to the petitioner to get 22% non-condonable part of deviation in the building demolished. In my considered opinion, the impugned order order dated 27.03.2018 contained in memo no. 497 dated 19.04.2018 passed by the respondent no. 2 does not contain any reasoning and thus, the same suffers from non-application of mind.
5. In the case of "Maneka Gandhi Vs. Union of India", reported in (1978) 1 SCC 248, the Hon'ble Supreme Court has held as under:-
221. It is well established that even where there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. This principle was laid down by this Court in the State of Orissa v. Dr (Miss) Binapani Dei in the following words:
"The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore arise from the very nature of the function intended to be performed: it need not be shown to be superadded. If there is power to 4 decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."
222. In England, the rule was thus expressed by Byles, J. in Cooper v. Wandsworth Board of Works (1863) 14 CB NS 180 : 1861-72 All ER Rep Ext 1554 "The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God), 'where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat? And the same question was put to Eve also."
6. Further, in the case of "Sahara India (Firm) (1) Vs. CIT", reported in (2008) 14 SCC 151, the Hon'ble Supreme Court has held thus:-
18. Recently, in Canara Bank v. V.K. Awasthy the concept, scope, history of development and significance of principles of natural justice have been discussed in extenso, with reference to earlier cases on the subject. Inter alia, observing that the principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-
judicial and administrative authority while making an order affecting those rights, the Court said: (SCC pp. 331-32, para 14) "14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a 5 citizen in his civil life."
19. Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial.
7. Right of being heard is one of the cardinal principles of natural justice. Affording opportunity of being heard is not a mere formality, rather the same must be applied in its true sense. Requirement to observe the principles of natural justice by the administrative/quasi-judicial authorities have been invariably emphasized by the constitutional courts so as to provide minimum protection of rights to private individuals against any arbitrary procedure that may be adopted by the quasi-judicial/ administrative authorities. Any order passed in exercise of an administrative action which involves adverse civil consequences must conform to the requirements of the principles of natural justice. Moreover, any decision of authority must be supported by appropriate reasoning as to why a particular conclusion has been arrived at.
8. Since the impugned order dated 27.03.2018 contained in memo no. 497 dated 19.04.2018 passed by the respondent no. 2 is devoid of any reasoning so as to impose penalty of Rs. 50,000/- and also to order for demolition of 22% non-condonable part of the building in question, the same cannot be sustained in law. Thus, the order dated 27.03.2018 contained in memo no. 497 dated 19.04.2018 is hereby quashed and set-aside. The matter is remanded to the respondent no. 2 to take a fresh decision in this regard by passing speaking and reasoned order after affording due opportunity of hearing to the petitioner.
9. The writ petition is accordingly disposed of with aforesaid observation and direction.
(Rajesh Shankar, J.) Manish/A.F.R.