Allahabad High Court
Mushtaq Ahmad vs State Of U.P. And 6 Others on 26 April, 2023
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 40 Case :- WRIT - C No. - 37592 of 2017 Petitioner :- Mushtaq Ahmad Respondent :- State Of U.P. and 6 Others Counsel for Petitioner :- Ramendra Pratap Singh,Alok Singh Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Manjive Shukla,J.
1. Heard Sri Ramendra Pratap Singh, learned counsel for the petitioner and Sri Raj Mohan Upadhyay, learned Standing Counsel for all the respondents.
2. By means of present writ petition, the petitioner has sought following reliefs:-
"(a) To issue an appropriate writ, order or direction commanding the respondent no.1 to produce the order dated 30.06.2017 and further issue a writ of certiorari calling for the records and quashing the order dated 30.06.2017 and consequential orders dated 11.07.2017 passed by the Joint Director (Fisheries), Fisheries Directorate, Uttar Pradesh, Lucknow (Annexure No.17 to the writ petition), 17.07.2017 passed by Assistant Director, Fisheries, Sonebhadra (Annexure No.18 to the writ petition) and recovery citation dated 21.07.2017 (Annexure No.19 to the writ petition).
(b) To issue a direction or mandamus to call the entire records of the arbitration proceedings numbered as Case No.01/Dhandh Son./2016 (Mustaq Ahmad vs. Assistant Director of Fisheries, Sonebhadra, Directorate of Fisheries, Lucknow) and order of Uttar Pradesh Government G.O. No.1093/17-Ma 2016-6-9 (320)/2016 dated 30.06.2017 by which respondents have cancelled the order dated 16.03.2017.
(c) Issue such other and further writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case or in the interest of justice.
(d) Award cost of the petition in favour of the petitioners."
3. It appears from the record that the State Government issued Government orders from time to time for management of fishing in reservoirs/tanks as well as for awarding fisheries lease in an organized manner. The last Government order was issued by the State Government on 8th March, 2000, whereby the reservoirs/tanks were classified as category-wise-1, 2, 3 and 4 and the contract of fishing rights were directed to be awarded through public auction. Subsequently, the aforesaid Government order was amended on 20.4.2001, wherein the instalments require to be deposited in terms of the auction/contract and 25% of the auction amount would be deposited on the acceptance of the bid and the remaining 75% amount would be deposited within 31st March in equal instalments. It was further provided that for 2nd and 3rd years of the contract, the 25% of the contract amount would be deposited on or before 15th August and remaining 75% would be deposited in equal instalment till 31st March. In case existing contract is cancelled much before six months of the remaining period, fresh auction would be held for the remaining six months and thereafter fresh auction for the next three years would take place according to the prescribed procedure.
4. The Deputy Director (Fisheries), Vindhyachal Division, Mirzapur had published a notice in Hindi newspaper 'Amar Ujala' on 08.12.2014, wherein a public auction was notified to be held on 17.12.2014 at 12 noon in the office of Joint Development Commissioner, Vindhyachal Division, Mirzapur for award of fishery rights in two Dams namely (1) Dhandhraul Jalashai Shreni-1, District Sonebhadra and (2) Baraudha Jalashai Shreni-3, District Mirzapur and the applicants were required to deposit Rs.2,20,000/- (for Shreni-1) and Rs.1000/- (for Shreni-3) as 10% of the reserved price. The petitioner participated in the auction proceeding dated 17.12.2014 and offered a bid of Rs. 60 lacs for Dhandhraul Jalashai. Being the highest bidder, he was awarded the fishery rights for an amount of Rs.60 lakhs with 10% increase per year for three years. On the date of acceptance of the bid i.e. 17.12.2014, the petitioner deposited Rs.15 lacs as one-fourth of the auction amount with the respondents. Once the respondents were not completing the auction formalities then the petitioner had moved an application on 31.12.2014. Finally, the Deputy Director of Fisheries, Mirzapur had passed an order on 03.2.2015, wherein the petitioner was awarded the contract for a period of three years from 17.12.2014 to 30.06.2017 and he was asked to deposit Rs.9,93,000/- as security money and furnish a bank guarantee/NSC/demand draft of Rs.45 lacs within 45 days. Thereafter, an agreement was executed by the respondent no.4 with the petitioner on 18.03.2015 for fishery rights of Dhandhaur Dam from 17.12.2014 to 30.06.2017. Admittedly, few instalments have not been deposited by the petitioner and from time to time, notices were also issued to the petitioner.
5. It also appears from the record that the petitioner started fishing in the said Dam and he could take out only 45.5 quintal fishes out of about 815 quintals from the Dam in question. Meanwhile, the Ghaghara Mukhya Nahar was opened by the Irrigation Department on 05.04.2015 and the Gate of the said Dam was also opened on 14/15.04.2015 as per exigency. It is claimed that the opening of the Dam led to the draining of the fishes outside the Dam. On account of the said incident, the petitioner had suffered huge loss and the same has also been apprised by him to the District Magistrate on 30.6.2015 through his representation, wherein he had requested for sympathetic consideration of his plight. He further made a request for appointment of Arbitrator as per Class-11 of the agreement on 19.1.2015. Once the respondent no.2 did not take any action on the said application then the petitioner had filed a claim petition before State Consumer Forum, Lucknow registered as Claim Petition No.C-155 of 2015 (Mushtaq vs. Director, Department of Fisheries, U.P. and others). Meanwhile, the Arbitrator had passed an interim order on 04.3.2016 staying the recovery proceedings initiated against the petitioner. It is claimed that on the assurance of the respondents, the petitioner had withdrawn the claim petition on 30.9.2016. As the sole arbitrator was transferred from the Department of Fisheries to the Revenue Department, a Three-Member Committee (Arbitrator) was appointed by the State Government on 21.9.2016. The Three Member Committee had made recommendation in favour of the petitioner on 17.10.2016, wherein, a categorical report had also been submitted that on account of unforeseen circumstances, the petitioner could not take out the required fishes and suffered loss and recommended to the State Government for waiver of the demand/recovery. It is also on record that the said recommendation had been accepted by the Special Secretary, Government of U.P. on 16.3.2017 for waiver of the recovery (Annexure No.16 to the writ petition) but the same has been recalled by the impugned order dated 30.6.2017. In pursuance thereof, the Joint Director, Fisheries has passed the impugned order dated 11.7.2017 for recovery of the outstanding amount of Rs.49,27,905/- from the petitioner.
6. Initially, the matter was taken up on 22.8.2017 and on the said date, a coordinate Bench of this Court had proceeded to pass following interim order:-
"The recovery of the amount as per the fishing contract was waived by the State Government by an order dated 16th March, 2017. The said order has been recalled ex-parte by an order dated 30th June, 2017 pursuant to which the recovery proceedings have been initiated by an order of 11th July, 2017.
The petitioner contends in paragraph 35 that no opportunity of hearing was given. More over, the order dated 30th June, 2017 has not been served upon the petitioner.
In the light of the aforesaid, we direct the learned Standing Counsel to file a counter affidavit and bring on record the order dated 30th June, 2017 within three weeks.
List for admission on 13th September, 2017.
Till the next date of listing, no recovery shall be made from the petitioner pursuant to the orders dated 30th June, 2017 and 11th July, 2017."
7. Again the matter was taken up on 05.1.2023 and on the said date, the Division Bench had passed following order:-
1. Heard Sri Ramendra Pratap Singh, learned counsel for the petitioner and Sri Raj Mohan Upadhyaya, learned State Law Officer for the State respondents.
2. Sri Ramendra Pratap Singh, learned counsel for the petitioner has vehemently contended that as per the agreement Clause 11, there is a provision for arbitration in the present matter. An application was moved for appointment of the Arbitrator on 19.01.2015. Consequently, the Arbitrator was appointed and even in the said proceedings, the Director Fisheries, Vindhyachal Division, District Mirzapur had appeared before the sole Arbitrator on 24.02.2016 and thereafter various dates were fixed in the said proceedings. While entertaining the arbitration proceedings, the Arbitrator had passed an interim order on 04.03.2016.
3. He submits that on account of transfer of sole Arbitrator from the Department of Fisheries to the Revenue Department, a three Member Arbitrator Committee was constituted on 21.09.2016.
4. In this backdrop, the writ petition was entertained before the Division Bench of this Court and accorded interim order on 22.08.2017 to the following effect:-
"The recovery of the amount as per the fishing contract was waived by the State Government by an order dated 16th March, 2017. The said order has been recalled ex-parte by an order dated 30th June, 2017 pursuant to which the recovery proceedings have been initiated by an order of 11th July, 2017.
The petitioner contends in paragraph 35 that no opportunity of hearing was given. More over, the order dated 30th June, 2017 has not been served upon the petitioner.
In the light of the aforesaid, we direct the learned Standing Counsel to file a counter affidavit and bring on record the order dated 30th June, 2017 within three weeks.
List for admission on 13th September, 2017.
Till the next date of listing, no recovery shall be made from the petitioner pursuant to the orders dated 30th June, 2017 and 11th July, 2017."
5. Time to time the aforesaid interim order was extended and lastly on 04.01.2018, the interim order granted earlier was extended to continue till further orders.
6. Learned counsel for the petitioner in this backdrop states that admittedly before fastening the liability on the petitioner, no opportunity was ever afforded to the petitioner, therefore, the order impugned is hit by principles of natural justice, even though in the present matter, the pleadings have been exchanged between the parties.
7. In this backdrop, we have occasion to peruse the record and find that the pleadings have been exchanged between the parties and no where it has been averred in the counter affidavit about the outcome/fate of the arbitration proceedings. Therefore, we are of the opinion that the said order is to be brought on record. The matter is adjourned.
8. List this matter again on 25-01-2023. Learned Standing Counsel is directed to place the record of the arbitration proceedings on the next date of listing."
8. Learned counsel for the petitioner in this backdrop submits that the opening of the Dam and draining of the fishes outside the dam was well within the knowledge of the authorities. Moreover, on account of said incident the entire financial liability may not be fastened exclusively on the petitioner. Instead of taking humanitarian consideration in favour of the petitioner, the respondent authorities in most arbitrary manner had decided the matter inspite of the fact that earlier recommendation was made in favour of the petitioner, which was duly acknowledged by the State Government. He has vehemently contended that the said action cannot sustain in the eyes of law and the same is also hit by principles of natural justice. In support of his submission, he has placed reliance on the judgement of this Court in Civil Misc. Writ Petition No.64030 of 2015 (Satyabeer Singh vs. State of UP and ors) decided on 01.03.2016.
9. Per contra, learned Standing Counsel, on the basis of averments contained in counter affidavit, has vehemently opposed the writ petition and submits that on account of inaction and non-cooperation of the petitioner, the arbitration proceedings could not be finalized and only on the basis of the report of the Three Member Committee, which has recommended in favour of the petitioner, the arbitration proceeding was closed. Subsequently, by the impugned order dated 30.06.2017 the earlier order dated 16.03.2017 was recalled and the Joint Director, Fisheries vide order dated 11.7.2017 directed for recovering the outstanding amount of Rs.49,27,905/- from the petitioner. On the basis of fact finding enquiry, the State Government has also directed for initiating enquiry against the officers, who had initially recommended for waiver of demand. The impugned order does not suffer from any illegality and tries to justify the passing of the impugned order.
10. Heard rival submissions and perused the record.
11. We have gone through the record and found that as per Class 11 of the agreement, the petitioner had moved the application before the respondent no.2 on 19.01.2015 for appointment of arbitrator, wherein the arbitrator had passed an interim order on 04.3.2016 staying the recovery proceedings initiated against him. Once the sole arbitrator was transferred from the Department of Fisheries to the Revenue Department then the Three-MemberCommittee (Arbitrator), which had recommended to the State Government on 17.10.2016 for waiver of the demand. The said recommendation was accepted by the Special Secretary, Government of U.P. on 16.3.2017 but the same has been recalled by the impugned order dated 30.6.2017. Admittedly, during the internal correspondences the petitioner was not afforded opportunity of hearing, rather the Competent Authority has recalled the order on 30.6.2017 ex-parte. Once the report of the Three-Member Committee has been accepted by the State Government vide order dated 16.3.2017 and in case the said order had to be reviewed or to be recalled then the same cannot sustain in absence of any notice or opportunity to him. It is well settled law that no decision shall be taken against party without affording him a reasonable hearing/opportunity (audi alteram partem), and in arbitrary manner, the earlier order was recalled and huge financial liability was fastened on the petitioner. Nowhere in the counter affidavit it is denied that before recalling the earlier order any opportunity was accorded to the petitioner.
12. The principle of natural justice has twin ingredients; firstly, the person, who is likely to be adversely affected by the action of the authorities, should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with higher degree of satisfaction. The order of an administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality. The distinction between passing of an order by an administrative or quasi-judicial authority has practically extinguished and both are required to pass reasoned orders.
13. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. 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'."
14. In A.K. Kraipak and others Vs. Union of India and Others, reported in (1970) 1 SCR 457, Hon'ble Supreme Court held that the concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice." (P. 468-69).
15. In Shridhar Vs. Nagar Palika, Jaunpur AIR 1990 SC 307 the Supreme Court has held that it is elementary principle of natural justice that no person should be condemned without hearing. In paragraph 8 it was held:
" 8. The High Court committed serious error in upholding the order of the Government dated 13.2.1980 in setting aside the appellant's appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's order had been passed without affording any opportunity of hearing to the appellant, therefore, the order was illegal and void. The High Court committed serious error in upholding the Commissioner's order setting aside the appellant's appointment. In this view, order of the High Court and the Commissioner are not sustainable in law."
16. In Nagarjuna Construction Company Limited v. Government of Andhra Pradesh, (supra), the apex Court held as follows:
?The rule of law demands that the power to determine questions affecting rights of citizens would impose the limitation that the power should be exercised in conformity with the principles of natural justice. Thus, whenever a man?s rights are affected by decisions taken under statutory powers, the court would presume the existence of a duty to observe the rules of natural justice. It is important to note in this context the normal rule that whenever it is necessary to ensure against the failure of justice, the principles of natural justice must be read into a provision. Such a course is not permissible where the rule excludes expressly or by necessary intendment, the application of the principles of natural justice, but in that event, the validity of that rule may fall for consideration.?
17. The Hon'ble Supreme Court in the case of J. Ashoka Vs. University of Agricultural Sciences & Others, (2017) 2 SCC 609 has held as under:-
"22. In G. Durga Nageshwari, it was held as under:-
"9. The above case no doubt interpreted the Indian Administrative Service Regulations. Regulation 5(5) of the said Regulations required recording of reasons for supersession. But as can be seen from the above paragraph of the Judgment, the Supreme Court based its conclusion on the right to equality guaranteed under Articles 14 and 16(1) of the Constitution and observed that recording or reasons for overlooking the claim of a person who is above and select a person below was necessary. The said principle was applied by this Court in the case of T.K. Devaraju v. State of Karnataka, ILR 1988 KAR 2084. This Court pointed out that the Regulation 5(5) of the Indian Administrative Service Regulation was only for the purpose of giving effect to Article 14 and 16(1) of the Constitution and the position would be the same even in the absence of such a regulation because of recording of reasons is the only way to ensure obedience to the fundamental right guaranteed under Articles 14 and 16(1). Therefore, in our opinion, Clause (4) of Statute 30 must be read along with Articles 14 and 16(1) of the Constitution, for the reasons, the University of Agricultural Sciences is state as defined in Article 12 of the Constitution and hence bound by the Articles included in the Fundamental Rights Chapter. Therefore, when under Clause (2) of Statute 30, a Selection Committee constituted for making selection on the basis of the performance of the candidate at the interview recommends the names in the order of merit, the power of the Board of Regents to choose best among them means normally it should proceed in the order of merit as arranged by the Selection Committee, and if it is of the view that any person placed lower is the best, it can do so, but it has to record reasons. If reasons are recorded then it can be said that the provisions of Articles 14 and 16(1) are complied with. But if a person placed below is appointed without assigning any reason, there is no other alternative than to hold that such a selection and appointment is arbitrary and violative of Articles 14 and 16(1) of the Constitution.
10. In the present case, it is not disputed that no reasons had been recorded by the Board of Regents as to why the 2nd respondent was selected for appointment in preference to the petitioner though the petitioner was placed at Sl. No. 1 and the 2nd respondent was placed at Sl. No. 3. The learned Counsel for the University submitted that reasons were not recorded in view of the earlier decision of this Court in Keshayya's case in which it was held that the Board of Regents had the power to select any one of the persons whom it considers best and make the appointment. But the precise question raised in this case and which was not raised in Keshayya's case is as to whether the Board of Regents could do so without assigning any reason. As shown earlier, the recording of reasons is a must having regard to the right guaranteed to the citizens under Articles 14 and 16(1) of the Constitution. Therefore, we are of the view that whenever the Board of Regents considers that a person placed lower in merit in the list of selected candidates recommended by the Selection Committee, it can do so only by recording reasons as to why the case of the person placed above is being overlooked and the person below is considered the best for being appointed. In the present case, no reasons have been recorded, may be for the reason the Board considered that it was unnecessary as stated by the learned Counsel. He however submitted that the Board of Regents has stated that respondent-2 is more suitable than the petitioner. That is the conclusion and not the reason. That conclusion must be preceded by the reason which is wanting in this case"
18. Considering the aforesaid facts and circumstances, we are of the considered opinion that the impugned orders dated 30.6.2017, 11.07.2017 and the recovery certificate dated 21.07.2017 cannot be sustained in the eyes of law and the same are, accordingly, quashed.
19. The matter is remanded back to the Principal Secretary, Department of Animal Husbandry and Fisheries, Government of Uttar Pradesh, Lucknow to decide the matter afresh strictly in accordance with law but certainly after affording opportunity of hearing to the petitioner.
20. The writ petition is, accordingly, allowed.
Order Date :- 26.4.2023 RKP