Karnataka High Court
Asif Alim Sait And Others vs Union Of India And Others on 16 December, 1998
Equivalent citations: ILR1999KAR2391, 2000(4)KARLJ280
Author: P. Vishwanatha Shetty
Bench: P. Vishwanatha Shetty
ORDER
1. The petitioners, in this petition, claim to be the owners in possession of property bearing B.C. No. 178 comprised in Survey No. 157, Havelock Road, Camp: Belgaum.
2. In this petition, the petitioners have prayed for quashing of the notices dated 6th of January, 1989, 10th of February, 1989, 29th of May, 1989 and 21st of June, 1989, copies of which have been produced as Annexures-B, C, D and E respectively, issued by the Cantonment Board, Belgaum (hereinafter referred to as "the Board"). They have also prayed for a declaration that sub-section (1) of Section 185 of the Cantonments Act (hereinafter referred to as "the Act") as unconstitutional and void in law.
3. A few facts that may be relevant for disposal of these petitions, may be briefly stated as hereunder:
(a) It is the case of the petitioners that petitioners 1 and 2 sought for permission from the Board to change the roof and carry out other repairs to their building, which is the subject-matter of dispute in this petition, through their application dated 16th of March, 1988; and after receipt of the said application, the Board, by its letter dated 8th of June, 1988, accorded permission; and thereafter, the first petitioner, by his letter dated 8th of June, 1988, sought for certain clarification and the clarification sought for was replied by the Board by its letter dated 15th of June, 1988. It is their case that thereafter, the petitioners started repairing their building as per the permission granted by the Board, but the Board, without any justification, subsequently issued notice Annexure-B, dated 6th of January, 1989 purporting to exercise the power conferred on it under sub-section (1) of Section 185 of the Act directing the petitioners to demolish the offending portion of the construction put up by the petitioners as specified in the said notice; and aggrieved by the said notice, the petitioners had preferred appeals before the second respondent as provided for under Section 274 of the Act; and during the pendency of the appeals, the second respondent stayed notice Annexure-B. It is the further case of the petitioners that subsequently, the Board issued notices Annexures-C, D and E.
(b) The Appellate Authority, by means of its order Annexure-A, dated 24th of July, 1992, dismissed the appeal filed by the petitioners challenging notice Annexure-B. During the pendency of the appeal, the petitioners had written letter dated 9th of July, 1992 addressed to the second respondent praying not to proceed with the disposal of the appeal since there was an interim order of stay granted by the Civil Court and the proceedings were sub judice; however, the second respondent not being satisfied with the request made by the petitioners not to proceed with the disposal of the appeals, rejected the said prayer and proceeded to dispose of the appeals confirming notice Annexures-B, C, D and E.
4. Sri B.V. Acharya, learned Senior Counsel appearing along with Sri B.L. Acharya for petitioners, made three submissions. Firstly, he submitted that impugned notices Annexures-B, C, D and E are liable to be quashed on the short ground that the said notices have been issued without giving an opportunity to the petitioners to put forward their case and without hearing them. Elaborating this submission, he pointed out that the consequences of giving effect to notices Annexures-B to E being serious as it would result in civil consequences and also would have serious effect on the property rights of the petitioners, though sub-section (1) of Section 185 of the Act does not contemplate providing of an opportunity of being heard to the parties affected, granting of an opportunity must be read into the said provision. Sri Acharya, in support of his submission, relied upon the decision of the Supreme Court in the cases of Government of Mysore and Others v J.V. Bhat, Scheduled Caste and Weaker Section Welfare Association (Regd.) and Another v State of Karnataka and Others, S.K. Bhargava v Collector, Chandigarh and Jagadish Patil v State of Karnataka and Others . Secondly, he submitted that if, for any reason, the granting of an opportunity to the parties, who are likely to be affected on account of the order/notice to be passed under sub-section (1) of Section 185 of the Act cannot be read into the provision, the said provision requires to be struck down as unconstitutional as the said provision seriously violates the right guaranteed to the petitioners under Article 14 of the Constitution of India. Finally, he submitted that the conclusion reached by the Appellate Authority while passing order Annexure-A that the petitioners have put up the construction of the building in question, which amounts to an offence under Section 184 of the Act, is totally erroneous and the said finding has been recorded in total disregard of the materials on record and also without giving an opportunity to the petitioners.
5. However, Sri Anantharaman, learned Counsel appearing for respondents 2 and 3, strongly supported the impugned order and notices. He submitted that since Section 274 of the Act provides for an appeal and Section 256 of the Act also provides for a notice and consideration of the objections, if any, by the parties affected on account of the order made under sub-section (1) of Section 185 of the Act, it was not necessary for the Board to give an opportunity to the petitioners before issuing the notices impugned. According to him, there is a post-decisional hearing provided under Section 256 of the Act and, therefore, it is not necessary to provide for an opportunity of being heard before issuing notice under sub-section (1) of Section 185 of the Act. In support of this plea, he relied upon the decision of the Supreme Court in the case of Cantonment Board and Another v Mohanlal and Another, It is his submission that though the High Court, in the said case, took the view that sub-section (1) of Section 185 of the Act contemplates giving of an opportunity to the parties affected, the Supreme Court negated the said contention in the decision, referred to above.
6. In the light of the rival submission made by the learned Counsel appearing for the parties, the questions that would fall for my consideration in these petitions, are.--
(1) Whether, in the absence of any specific provision under Section 185 of the Act, providing for an opportunity of being heard before issuing notice/order under sub-section (1) of Section 185 of the Act, is it necessary to hear the parties who are likely to be affected before passing an order under Section 185(1} of the Act?
(2) Whether sub-section (1) of Section 185 of the Act is unconstitutional as it does not contemplate providing of an opportunity to the parties who are likely to be affected?
(3) Whether the impugned notices/order are liable to be quashed?
Re: Questions (1) and (2):
7. Since both questions (1) and (2) are interconnected, it may be useful to dispose them of together.
8. No doubt, sub-section (1) of Section 185 of the Act does not contemplate providing of an opportunity to the parties and hearing before issuing of an order/notice of demolition of the building by the Board. It is useful to extract sub-section (1) of Section 185 of the Act, which reads as hereunder:
"185. Power to stop erection or to demolish.--(1) A Board may, at any time, by notice in writing, direct the owner lessee or occupier of any land in the cantonment to stop the erection or re-erection of a building in any case in which the Board considers that such erection or re-erection is an offence under Section 184, and may in any such case or in any other case in which the Board considers that the erection or re-erection of a building is an offence under Section 184, within twelve months of the completion of such erection or re-erection in like manner direct the alteration or demolition, as it thinks necessary, of the building, or any part thereof, so erected or re-erected:
Provided....".
(emphasis supplied) Sub-section (1) of Section 185 of the Act authorises the Board at any time by notice in writing, direct the owner, lessee or occupier of any land in the cantonment to stop the erection or re-erection of the building in any case in which the Board considers that such erection or re-erection is an offence under Section 184, and may in any such case, or in any other case, in which the Board considers that the erection or re-erection of a building is an offence under Section 184, within twelve months of the completion of such erection or re-erection, direct the alteration or demolition as it thinks necessary, of the building or any part thereof. Therefore, it is clear that the consequences of an order made under sub-section (1) of Section 185 of the Act is of very serious nature. It would certainly affect the property right of the owner of a building. Such an order would result in civil consequences. It is well-settled that wherever an order passed, if it results in civil consequences, before issuing such an order, the principles of natural justice require that the persons who are likely to be affected on account of such an order must be heard. In this connection, it will be useful to refer to the decision of the Supreme Court in the case of Charan Lal Sahu v Union of India. In the said decision, at paragraphs 109 and 110, the Supreme Court has observed as follows;
"109. The fact that the provisions of the principles of natural justice have to be complied with is undisputed. This is well-settled by the various decisions of the Court. The Indian Constitution mandates that clearly, otherwise the Act and the actions would be violative of Article 14 of the Constitution and would also be destructive of Article 19(1)(g) and negate Article 21 of the Constitution by denying a procedure which is just, fair and reasonable. See in this connection, the observations of this Court in Smt. Maneka Gandhi v Union of India and Another and Olga Tellis and Others v Bombay Municipal Corporation and Others. Some of these aspects were noticed in the decision of this Court in Swadeshi Cotton Mills v Union of India. That was a decision which dealt with the question of taking over of the industries under the Industries (Development and Regulation) Act, 1951. The question that arose was whether it was necessary to observe the rules of natural justice before issuing a notification under Section 18-A(1) of the Act. It was held by the majority of Judges that in the facts of the case there had been non-compliance with the implied requirement of the audi alteram partem rule of natural justice at the pre-decisional stage. The order in that case could be struck down as invalid on that score but the Court found that in view of the concession that a hearing would be afforded to the company, the case was remitted to the Central Government to give a full, fair and effective hearing. It was held that the phrase 'natural justice' is not capable of static and precise definition. It could not be imprisoned in the strait-jacket of a cast-iron formula. Rules of natural justice are not embodied rules. Hence, it was not possible to make an exhaustive catalogue of such rules. This Court reiterated that audi alteram partem is a highly effective rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power. The rules of natural justice can operate only in areas not covered by any law validly made. The general principle as distinguished from an absolute rule of uniform application seems to be that where a statute does not in terms exclude this rule or prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. If the statute conferring the power is silent with regard to the person affected the administrative decision after post-decisional hearing was good.
110. The principles of natural justice have been examined by this Court in Union of India and Another v Tulsiram Patel. It was reiterated that the principles of natural justice are not the creation of Article 14 of the Constitution. Article 14 is not the begetter of the principles of natural justice but their constitutional guardian. The principles of natural justice consist, inter alia, of the requirement that no man should be condemned unheard. If, however, a legislation of a statute expressly or by necessary implication excludes the application of any particular principle of natural justice then it requires close scrutiny by the Court".
9. Now, the question is whether, when sub-section (1) of Section 185 of the Act does not contemplate giving of an opportunity, is it permissible for the Court to hold that still the law contemplates giving of an opportunity to the party who is likely to be affected on account of an order made under the said provision? It is also well-settled that unless the statute specifically excludes giving of an opportunity, it is permissible to read into the provision depending upon the facts and circumstances of the case and the serious consequences of the order on the rights of the parties, that giving of an opportunity is implicit in the provision. In the case of Government of Mysore, supra, when the constitutionality of Sections 3, 9, 12 and 15 of the Mysore Slum Areas (Improvement and Clearance) Act (hereinafter referred to as "the Slum Areas Act"), was called in question on the ground that the said provisions were unconstitutional as they did not contemplate giving of an opportunity to the parties affected of being heard on account of the declaration made under Sections 3 and 9 of the Karnataka Slum Areas (Improvement and Clearance Act), 1973 (hereinafter referred to as "the Slum Areas Act"), the Supreme Court took the view that when there is nothing in a statutory provision which debars the application of principles of natural justice when the authorities exercise the statutory power under the Act the principles of natural justice would apply unless the statutory provisions point to the contrary; and statutory provisions themselves are not unconstitutional though the notification issued under them may be struck down if the authorities concerned do not observe the principles of natural justice while exercising their statutory powers. In the said view of the matter, the Supreme Court, while reversing the decision of this Court wherein this Court struck down Sections 3 and 9 as violative of Article 19(1)(g) of the Act and Section 12(1)(a) and (b) of the Slum Areas Act as violative of Article 14 of the Constitution, took the view that the principles of natural justice contemplate giving of an opportunity to the persons affected before issuing notifications under Sections 3 and 9 of the Slum Areas Act. In my view, the principle laid down by the Supreme Court in the said decision would fully apply to the present case. The aforesaid decision has been followed by the Supreme Court in the case of Scheduled Caste and Weaker Section Welfare Association, supra. In the said decision, at paragraph 15, the Supreme Court has observed as follows:
"15. 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. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the body of persons appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory duty imposed itself unnecessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported. Thus, in applying the test to the provisions of the earlier Act, the Mysore Slum Areas (Improvement and Clearance) Act, 1958, this Court held in the case of Government of Mysore, supra, thus:
There can be no two opinions about the need to hear the affected persons before declaring an area to be a slum area under Section 3 or an area as a clearance area under Section 9 or before taking action under Section 10. All these difficulties will be removed if the affected persons are given an opportunity to be heard in respect of the action proposed' ".
Therefore, in the light of the discussion made above, I am of the view that though sub-section (1) of Section 185 of the Act does not contemplate giving of an opportunity to the parties affected, having regard to the serious civil consequences that would flow from the passing of an order under sub-section (1) of Section 185 of the Act, it is necessary to read into the said provision of an opportunity of being heard to be given to the parties who are likely to be affected on account of such an order being made. If the said provision is so read and understood, the said provision also cannot be challenged on the ground of unconstitutionality.
Further, I am unable to accede to the submission of Sri Anantharaman that since there is a right of appeal provided under Section 274 of the Act and a provision for issuing a notice under Section 256 of the Act, it is not necessary to hear the persons who are likely to be affected, before passing an order/notice under Section 185(1) of the Act. The said provisions cannot be understood as providing for post-decisional hearing. Section 274 of the Act only provides for a right of appeal. The Appellate Authority can only examine the correctness of the order on the basis of the finding recorded by the Board. Section 274 of the Act does not automatically provide for suspension of the order made under Section 185 of the Act. It also does not provide for fresh enquiry as if it is an original proceeding. Therefore, I am of the view that Sri Anantharaman cannot take much assistance from Section 274 of the Act in support of his contention that an opportunity need not be given before passing an order under sub-section (1) of Section 185 of the Act.
10. The only other question is that in view of Section 256 of the Act, which provides for issuing of a notice, whether an opportunity need not be given while passing an order/notice under sub-section (1) of Section 185 of the Act? Here also, I am unable to accept the submission of Sri Anantharaman. Section 256 of the Act provides for power to get the order of the Board implemented. At that stage, no doubt it provides for issuing of a notice. But, the said provision does not contemplate giving of an opportunity to go into the correctness of the order made under sub-section (1) of Section 185 of the Act. Sub-section (1) of Section 185 of the Act confers power on the Board to direct demolition of the building or to cause alteration of the building, if the Board considers that such erection or re-erection of a building is an offence under Section 184 of the Act. Therefore, the conclusion of the Board that erection or re-erection of a building is an offence under Section 184 of the Act, is required to be made on an objective assessment of the materials on record. The objective assessment of the case as to whether the erection or re-erection of a building is an offence within the meaning of Section 185 of the Act can be made, in my view, only after hearing the plea of the parties who are likely to be affected on account of an order to be made under sub-section (1) of Section 185 of the Act, Therefore, I have no doubt in my mind in taking the view that though Section 185 of the Act does not contemplate giving of an opportunity before passing an order under sub-section (1) of Section 185 of the Act, the parties, who are likely to be affected, are required to be heard, and an opportunity must be afforded. It is also necessary to refer to the submission made by Sri Anantharaman relying on the decision of the Supreme Court in the case of Cantonment Board and Another, supra, that opportunity need not be given before passing an order under sub-section (1) of Section 185 of the Act. In the said decision, the Supreme Court did not consider the question whether an opportunity is required to be given before an order is made under sub-section (1) of Section 185 of the Act. The decision of the Supreme Court mainly turned on the admitted facts of that case. The facts of the said case clearly show that the party had filed his statement, and in the statement, he had admitted that he had carried on illegal construction without compliance with law; and under those circumstances, the Supreme Court took the view that the High Court was not right in its conclusion that an independent enquiry was required to be held after the notice was issued and reply thereto was given by the party. This is clear from paragraphs 2 and 3 of the said decision, which read as hereunder:
"2. The only question in this case is whether the view taken by the High Court is good in law. It is seen that the respondent in his reply had admitted that they constructed, as pointed out by the Cantonment Board in its notice dated 13-9-1974, and the previous notice. But he stated that he had done it bona fide and as he would not demolish it but requested the authority to reconsider the matter and withdraw the notice. In other words, he admitted that he had carried on illegal construction without compliance with law. So the question is whether enquiry in that behalf is required to be conducted. We are of the considered view that the High Court was not right in its conclusion that an independent enquiry requires to be held after the notice was issued and the reply thereof was given by the respondent.
3. It is seen that the Cantonment Board is an elected body represented by the people themselves. When opportunity was given putting on notice of illegal construction made by the respondent, reply thereof was given. The Board had considered the representation and was not inclined to accede to the request made by the respondent. Accordingly, the resolution passed by the Cantonment Board cannot be faulted as violative of the principles of natural justice".
Therefore, in the light of the discussion made above, I am of the view that while sub-section (1) of Section 185 of the Act does not suffer from the vice of unconstitutionality, the said provision contemplates giving of an opportunity to the parties who are likely to be affected, before passing an order/issuing a notice under the said provision. Therefore, the notices dated 6th January, 1989, 10th February, 1989, 29th May, 1989 and 21st June, 1989, vide Annexures-B to E, respectively, are liable to be quashed. Accordingly, they are quashed. Consequently, order Annexure-A is liable to be quashed and it is quashed.
11. However, liberty is reserved to the Board to pass fresh orders in the light of the observations made above and after giving an opportunity to the petitioners.
12. In terms stated above, this petition is allowed and disposed of. Rule is made absolute.
13. However, no order is made as to costs.