S vs State on 17 October, 2011

[Cites 9, Cited by 0]

Gujarat High Court

S vs State on 17 October, 2011

Ms.Asmita Patel, learned Assistant Government Pleader waives service of notice of Rule for the respondents. On the facts and in the circumstances of the case, and with the consent of the learned counsel for the respective parties, the petition is being heard and finally decided, today.

2. This petition under Article 226 of the Constitution of India has been filed, with the following prayers :

"(A) Your Lordship may be pleased to admit and allow this petition;

(B) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned Orders/Communication dated 25.5.2010 and 1.6.2011 passed by the respondents No.3 and 4 (Annexure-A Colly) and further be pleased to direct the respondents and its officers, agents and servants not to prohibit the petitioner from participating in the tender processes-

open auction and/or public auction which are to be held by the respondents in future in the entire State of Gujarat;

(C) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction permanently restraining the respondents, their officers, agents and servants from treating the petitioner as blacklisted and further be pleased to restrain them from denying the petitioner's right to participate in the tender processes and/or open and/or public auction proceedings which are to be held by the respondents in future in the entire State of Gujarat;

(D) Pending admission, hearing and final disposal of this Special Civil Application, Your Lordship may be pleased to :

(i) stay the operation and/or implementation and/or execution of the impugned Orders/Communication dated 25.5.2010 and 1.6.2011 passed by the respondents No.3 and 4 (Annexure-A Colly); and

(ii) to direct the respondents and its officers, agents and servants not to prohibit the petitioner from participating in the tender processes -

open auction and/or public auction which are to be held by the respondents in future across the State of Gujarat;

(E) Your Lordship be pleased to pass such other and further orders as may be deemed fit, just and proper in the peculiar facts and circumstances of the present case."

3. Briefly stated, the facts of the case are as under:

3.1 The petitioner is a Partnership Firm and is carrying on its business in the name and style of 'S.S.Woods'. The petitioner has been participating in public auctions held by the respondents across the State, especially in the Districts of Nadiad, Dahod, Dangs and Panchmahals. It is the case of the petitioner that respondent No.3 invited tenders from willing bidders, for a public auction to be held for removal of trees in various ranges under respondent No.3, including the Garbada range. The relevant site is Gangardi (FR model), for removal of 1060 trees. Pursuant to the advertisement issued by the respondents, the petitioner applied and participated in the tender process. It is stated in the petition that the petitioner was the highest bidder and his bid was accepted by respondent No.3.

The petitioner deposited 1/4th of the total amount of the bid amounting to Rs.4,77,000/-, on 15/16.06.2010. According to the petitioner, there were about 121 trees lesser than the total number of 1060 trees on the site, as mentioned in the advertisement and the tender. The petitioner sent a communication dated 14.06.2010 to respondent No.3, asking him to earmark 1060 trees within a period of three days, so that the petitioner can do the needful. By communication dated 01.07.2010, respondent No.3 informed the petitioner that the advertisement prescribes only the approximate volume of wood, therefore, there is no question of earmarking 1060 trees and advised the petitioner to take possession and do the needful, as expeditiously as possible. Some further communications in this regard ensued between the petitioner and the respondents. On 06.08.2010, respondent No.3 issued a final notice to the petitioner, calling upon him to deposit the remaining 3/4th of the total amount, failing which the 1/4th amount already deposited would be forfeited. The petitioner issued a notice under Section-80 of the Code of Civil Procedure to the respondents on 11.08.2010, to which respondent No.3 replied on 08.10.2010. The petitioner instituted a Civil Suit, being Special Civil Suit No.31/2010, seeking permanent injunction against the respondents, and an application under Exhibit-5. The application under Exhibit-5 came to be rejected by the Trial Court by order dated 22.12.2010. The petitioner had also filed an application for appointment of a Court Commissioner, which was allowed. According to the petitioner, the Court Commissioner counted the trees on the site and found that there were 121 trees lesser than the stipulated figure of 1060 trees.

3.2 It is further the case of the petitioner that when he participated in the tender process in Nadiad, the Deputy Conservator of Forests, Nadiad, informed him that by virtue of order dated 25.05.2011, issued by the Deputy Conservator of Forests, Dahod, to the Chief Conservator of Forests, Ahmedabad, the petitioner has been debarred/blacklisted from participating in auctions throughout the State. The grievance of the petitioner is that the impugned communication dated 25.05.2011 has never been served upon him, and could only be obtained under the Right to Information Act, 2005. According to the petitioner, no Show Cause Notice has been issued, and no opportunity of hearing has been granted to him, before issuing the said communication, which constitutes a serious violation of the principles of natural justice. Hence, the petition.

4. Notice was issued in the petition on 26.07.2011. However, till date, no reply has been filed by the respondents, despite several opportunities being granted to them.

5. When the matter is taken up today, Ms.Asmita Patel, learned Assistant Government Pleader states, upon instructions from Mr.V.B.Khadia, Assistant Conservator of Forests, Dahod, who is present in the Court today, that the order dated 25.05.2011 was not served upon the petitioner, and no opportunity of hearing has been granted to him before debarring/ blacklisting him from participating in auctions throughout the State of Gujarat.

6. In view of the above statement made by the learned Assistant Government Pleader, it is evident that adverse action entailing civil consequences has been taken against the petitioner without granting him an opportunity of hearing, which is against the principles of natural justice.

7. In the case of Malavkumar Arunbhai Patel Vs. Sardar Patel University and others reported in 2006 (3) GLH 695, this Court, relying upon certain judgments of the Apex Court, has held as below :

"23. Any action taken by an administrative or quasi judicial authority which entails civil consequences should only be taken after complying with the principles of natural justice. Although the principles of natural justice cannot be put into a strait-jacket formula, it cannot be disputed that the doctrine of natural justice exists not only to secure justice but also to prevent the miscarriage of justice. It is true that strict rules of evidence do not apply in proceedings such as those which took place in the case of the petitioner before the "Unfair Means Committee". However, even the requirement of preponderance of probabilities has not been adhered to since the impugned Notification dated October 4,2000 as well as the Minutes of the proceedings which led to the passing of the impugned order do not disclose the material which was available with the committee which pointed out the involvement of the petitioner in the incident. In that view of the matter, the impugned order is also not a speaking one and does not disclose the reasons or the grounds on which the decision to permanently debar the petitioner has been taken.

24. In A.K.Kraipak v. Union of India, reported in AIR 1970 SC 150 the aim and relevance of the principles of natural justice have been clearly enunciated by the Constitution Bench of the Supreme Court in para 20 thereof, which reads as under:

"20.

The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. 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 (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) 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. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala, Civil Appeal No. 990 of 1968, D/- 15-7-1968 = (AIR 1969 SC 198) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."

25. Further in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, reported in (2001)1 SCC 182, the Supreme Court has held as under in paragraphs 1 and 2 of the reported judgment:

"Since the decision of this Court in Kraipak's case (A. K. Kraipak v. Union of India) one golden rule that stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. What, however, does this doctrine exactly mean? Lord Reid about four decades ago in Ridge v. Baldwin very succinctly described it as not being capable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances - who then is a reasonable man - the man on the clapham omnibus? In India, however, a reasonable man cannot but be a common man similarly placed. The effort of Lord Reid in Ridge v. Baldwin in not attributing a definite meaning to the doctrine but attributing it to be representing a fair procedure still holds good even in the millennium year. As a matter of fact this Court in the case of Keshav Mills Co. Ltd. v. Union of India upon reliance on the attributes of the doctrine as above stated as below (SCC p.387,para

8) "8.

The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of natural justice cannot be put into a strait-jacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in H. K. (an infant), In re. It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin case as 'insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances'. However, even the application of the concept of fair-play requires real flexibility. Everything will depend on the actual facts and circumstances of a case. As Tucker, L.J observed in Russell v. Duke of Norfolk:

"The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth."

2. While it is true that over the years there has been a steady refinement as regards this particular doctrine, but no attempt has been made and if we may say so, cannot be made to define the doctrine in a specific manner or method. Strait-jacket formula cannot be made applicable but compliance with the doctrine is solely dependent upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of non-compliance with the doctrine, the law courts in that event ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most-accepted methodology of a governmental action."

26. It is now an accepted proposition of law that any statutory body which is entrusted by statute with discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other. Even an administrative order, which involves civil consequences must be made consistently with the rules of natural justice. Although the expression 'civil consequences' has not been defined anywhere, the observation made in Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 at para-66 on page 440 is relevant in this context and reads as below:

"What is civil consequence, let us ask ourselves, by passing verbal booby-traps? 'Civil consequences' undoubtedly cover infraction of not merely property or personal rights but of civil liberties material deprivation and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence."

8. Further, in Southern Painters Vs. Fertilizers & Chemicals Travancore Ltd. and another reported in 1994 Supp.(2) SCC 699, the Supreme Court has held that :

"11. The deletion of the appellant's name from the list of approved contractors on the ground that there were some vigilance report against it, could only be done consistent with and after due compliance with the principles of natural justice. That not having been done, it requires to be held that withholding of the tender form from the appellant was not justified. In our opinion, the High Court was not justified in dismissing the writ petition."

(emphasis supplied)

9. Examining the case of the petitioner in light of the principles of law enunciated in the above-quoted judgments, and in view of the statement made by the learned Assistant Government Pleader, which substantiates the case of the petitioner that no opportunity of hearing has been granted to him before permanently debarring/blacklisting him from participating in tender processes across the State, it is evident that the action of the respondents, which entails serious civil consequences to the petitioner has been taken in utter violation of the principles of natural justice. In such circumstances, it would be incumbent upon the respondents to adhere to the rule of Audi Alteram Partem.

It is a settled principle of law that no order entailing civil consequences ought to be passed by any administrative or quasi-judicial authority, without hearing the other side, so as to ensure fairness on the part of the deciding authority. In the present case, the principles of natural justice have not been followed rendering the action of the respondents bad in law. It is an admitted position that no Show Cause Notice has been given to the petitioner, who has been unable to defend himself before the passing of the impugned order.

10. In the above factual matrix and for the aforestated reasons, the petition is partly-allowed. The impugned communication dated 25.05.2011 issued by the Deputy Conservator of Forests, Dahod, to the Chief Conservator of Forests, Ahmedabad, is quashed and set aside. It is open to the respondents to take action, in accordance with law, after granting the petitioner an adequate opportunity of hearing.

11. It is clarified that this Court has interfered only on the ground of violation of the principles of natural justice, and has not entered into the other contentions raised by the petitioner, or the merits of the case.

Rule is made absolute, to the above extent. There shall be no orders as to costs.

(Smt. Abhilasha Kumari, J.) ~gaurav~ Top

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Gujarat High Court