Andhra HC (Pre-Telangana)
G. Rajalakshmi And Ors. vs Appellate Authority (Chief Judge, City ... on 2 March, 1979
Equivalent citations: AIR 1980 ANDHRA PRADESH 100, (1980) 1 RENTLR 160 (1979) 2 ANDHWR 509, (1979) 2 ANDHWR 509
ORDER
1. In this writ petition a question of general and of unusual importance is raised. The question may formulated as under.
"Can a deficiency is of a natural justice before a trial tribunal be cured by sufficiency of natural justice before an appellate tribunal"?
The facts relating to that issue are as under-
2. The premises known "T. R. Stall" in the civil aerodrome at Begumpet is owned by Aviation department of the Central Government. T. R. Stall was leased out to M/s. Jyoti Book stall on a rent of Rs. 1,107/- per mensem. The lease expired on September 30, 1977. The tenant did not vacate the premises. The estate officer, the second respondent served on the tenant a notice on November 30. 1977 under Section 4 of the public premises (Eviction of Unauthorised Occupants) Act 40 of 1971 and in that it was recited the tenant after the expiry of the lease continued to remain in the premises as unauthorised occupant and was asked to show cause why he should not be evicted under Act 40 of 1977. G. Lakshmipathi, the proprietor of Jyothi Book stall submitted objections in his representation on December 11, 1977. The Estates officer by the order dated December 15, 1977 direct the Jyoti Book stall to vacate the premises within thirty days from the date of service of the order for it was mentioned that the occupant was called upon to show cause and "there was no response" from the occupant. The order of eviction was assailed in appeal in C. M. A. No. 2 of 1978 before the appellate authority. On April 14, 1978 G. Lakshmipathi died. The window, the son and the two daughters of the deceased were brought on record as legal representatives (the four of them are the writ petitioners). In the course of the appeal per order in I. A. N. 235 of 1978 additional evidence was adduced. P. W. 1, the son of Lakshmipathi was examined. Exs. A1 and A2 were marked as additional evidence in appeal. Ex. A1 was the explanation or representation submitted on December 11, 1977 to the show case notice dated November 30, 1977. Ex. A2 is the postal acknowledgement showing the Estates Officer had received the explanation of the tenant. The appellate authority in C. M. A. No. 2 of 1978, on the basis of evidence recorded, held the show cause notice issued to the occupant, an explanation (A-1) was submitted to th Estates Officer and observed:-
"The remark made by the first respondent (the Estates Officer) is undoubtedly erroneous. It therefore follows that the requirements of considering the explanation submitted by the first appellant and affording him a reasonable opportunity of being heard as contemplated under Section 5 of the Act before the impugned order was passed were not complied with by the first respondent."
. Having so held the appellate authority, on the merits of objections,, held there was nothing which the Estates Officer would have 'considered" and affirmed the order dated July 6, 1978 (the impugned order) ....... the order of eviction passed by the Estates Officer.
4. The writ petitioners seek to assail the order (in C. M. A. No. 2 of 1978 on July 6, 1978) and aver that the lease was renewed by the aerodrome officer, the third respondent, who had issued Bill No. 9046 dated October 24, 1977 for October, 1977 for the sums of Rs. 1,107/- being the rent and Rs. 55-35 towards conservancy charges and two other bills issued on October 24, 1977 for Rs. 50/- and Rupees 3.75 for the month of October, 1977; the former was for electricity charges and the later for water charges. The spouse of the deceased averred that the bills were paid and receipts were obtained. The lease was renewed. The tenancy, it is averred, is subsisting. The occupant was a tenant in the premises and not unauthorised occupant. The representation on Deem. 11, 1977 (A-1) was received by the Executive Officer and notwithstanding the acknowledgment Ex. A-2, in the order passed by the second respondent under section five of the said Act, a false recital is made that no representation was received. The order of the appellate authority is attacked as an improper order and the petitioners seek to quash the impugned order of July 6, 1978 in C. M. A. No. 2 of 1978.
5. Sri P. C. Varghese the Aerodrome officer submitted a counter on behalf of the respondents and averred that a "licence was granted to late Lakshmipathi to install a Book Stall in the space provided at the air-port. The "tenant' was directed to vacate the premises by the order of the Estates Officer. That order was affirmed in appeal. The order was executed on July 11, 1978 and 'goods' of Lakshmipathi were removed from the premises and delivered to the petitioners on September 8, 1978. Late Lakshmipathi, it is averred, had submitted a tender along with others when tenders were called for "fresh contract" and the tender of Lakshmipathi was not the highest and for that reason he was not "awarded the contract" for the ensuring year. In this regard the facts in regard to a suit O. S. N. 749 of 1977 on the file of First Additional Judge, City Civil Court, Hyderabad are averred and in that the "tenant" sought for arbitration of a dispute relating to the order of eviction passed by the Estates Officer. However, a new 'contractor', it is averred, was inducted in the premises by the respondents and is carrying on business. The conclusions reached by the appellate authority in the impuged order on merits are averred proper and do not suffer from any vice whatever.
6. The question debated in the circumstances of the case is :- Can a deficiency of natural justice before a trial tribunal be cured by sufficiency of natural justice before an appellate tribunal? In considering the issue, the powers of the appellate authority, to pas the impugned order are not questioned.
7. When the appellate tribunal had come to the conclusion that before the original authority there was no consideration of the representation, is it open for the appellate authority to consider the question on merits is the broad question that is mooted. Such a procedure is opted generally by civil Courts of appeal, admits of no doubt. Very often the civil Courts do consider the merits of issue which were not considered by the trial Court or in appeal for the proceedings are regulated by the Code of Civil Procedure. When a written statement is filed in a suit or in a proceeding where the Civil P. C. governs the proceedings, hardly a question arises where factum of submission of an answer or written statement is disputed. The issue in the instant case is stressed in view of the fact that under Act 40 of 1971 the proceedings before the Estates Officer or in appeal are not regulated except what is contained in Act 40 of 1971.
8. The words "unauthorised occupation" and defined under Section 2 cl. (g) of the Act. Section 3 speaks of the appointment of Estates Officers. Section 4 speaks of notice by the Estates Officer to unauthorised occupant calling upon such person to show cause why an order of eviction be not made against the occupant. Clause 2 of Section 4 requires that the notice should contain the grounds on which the order of eviction is proposed to be made; clause three deals with the formalities that have to be complied with for service of notice. If any representation is received to the notice issued under Section 4, the Estates Officer shall consider and pass appropriate orders under Section 5 of the Act. The power of an Estates Officer to pass an order requiring a person in unauthorised occupation to pay rent or damages is specified in Section 7 and further powers of the Estates Officer are enumerated in Section 8 like summoning, enforcing attendance of witness and as to production of documents etc. Section 9 deals with appeals against an order of the Estates Officer passed under Section 5 or Section 7 in regard to public premises. Clause 4 of Section 9 reads:-
"Every appeal under his section shall be disposed of by the appellate officer as expeditiously as possible;"
and the appellate order is final and civil court's jurisdiction in this regard is outset.
9. The question at issue is; Can the tribunal in appeal consider the merits of the is as the original authority and record findings or is it improper (if not illegal) to do so. It is suggested that in such circumstances on behalf of the Writ Petitioners the appellate authority should record its conclusion first as to the fact whether the trial Tribunal had violated, the rule of audi alteram partem and once the conclusion is reached that the trial Tribunal had not given due weight to the representation. the learned counsel for the petitioners argued the course open for 'orderly procedure' is to remit the is to the original authority for proper consideration on merits. Such a course was not adopted by the appellate authority is the gravament of the attack made by the writ petitioners.
10. The question thus posed has to be considered on first principles. There is very little authority in the decisions of this Court or in the Supreme Court touching this aspect of the question. It may be recalled that in Redge v. Baldwin (1) 1964 AC 40, the House of Lords and considered the scope of "notice" forming part of the principle of audi alteram partem. Lord Reid in his speech had stressed the principle of aud alterm partem is part and parcel of natural justice. That is not disputed. A similar question as in the instant case arose directly in Leary v. National Union of Vehicle Builders (2) (1970) 2 All ER 713 at pl 720. Leary the plaintiff in the suit was a member and organiser of National Union of Vehicle Builders. The 'Union' in the rules, Rule a26 (2) had reserved authority to expel any member who had defaulted payment of contribution for six months. The Brach Committee of the Union by order on January 16, 1969 expelled Leary without hearing him for not paying the contributions for 27 weeks. The plaintiff (Leary) in vain attacked the order in appeal before the Appeals Council and urged 5 were paid by him. Before the Appeals Council Leary was heard and afforded all opportunities. Further in the appeal committee two council members were not served notice of the meeting and one M. Wattas, who was not a member, formed as member of the council. The order of the appeal council was challenged in a suit. Megary J., posed the question on the above facts:- "If a man has never had a fair trial by the appropriate trial body, is it open to appellate body to discard its appellate functions and itself give the man the fail trial that he has never had" and captioned the circumstance as "unjust trial and a fair appeal" and answered the question as a general rule. "I hold that a failure of natural justice in the trial body cannot be cured pellate body". The learned Judge held bodies differ much in their views and approach and referred to the rules of the Union as having 'confined' in the Branch Committee for expulsion not in the fairness of appeal. I respectfully agree with the reasoning propounded in the decision. Adoption of such a course in my view curbs the tendency in "trial tribunals" to give a short shrift to proceedings. The explanation Ex. A-1 in the instant case was received by the Estates Officer yet it was said by that authority that no explanation was received. It is with reference to such devices Rt. Hon. Lord Hewart of Bury in his book "New despotism" at page 49 observed. Some such decisions are rendered in "hole and corner" fashion. Decisions of administrative tribunals are generally criticised even those in whose favour the decision is made, it is said as "mere piece of luck". How can it be said such decisions rendered as in these proceedings are rendered under rule of law. In my view the proper course for the appellate tribunal is to remit the subject to the trial tribunal and by doing so. the principle of audi alteram partem and in turn the larger principle of natural justice stands vindicated and strengthened. I am aware that it is possible to take another view and such a view appears to have been taken in two of the commonwealth dominions, in three Canadian cases viz., Posluns v. Toronoto Stock Exchange and Gardiner (3) (1964) 46 DLR (2d) 210, and in appeal of the same case in (4) CA (1965) 53 DLR (2d) 193, in King v. University of Sakatcheytan, (5) (1969) SCR 678 and one in a decision in New Zealand case in Dention v. Auckland City, (6) (1969) NZLR 256, but I had not the advantage of reading these decisions. I have understood the question as one not governed by any authority of this Court or that of the Supreme Court of India. The field in that sense is untrodden. In view of the paucity of authority whether to adopt the view taken by the Courts in England as propounded by Megarry L. in (2) (above) or to have recourse to the adoption of procedure followed in Canadian and New Zealand Cases! A number of cases were cited during the debate. There is very little guidance on this aspect. There are observations, however, made by Ramaswami J. (as he then was) in Sheopujan v. State of Bihar, (7) , wherein the principle of audi alteram partem has been accepted to mean that the party affected must be given sufficient opportunity 'at any stage'. The concept of natural justice, true it is, cannot be imprisoned in a strait-jacket or in a fixed formula. Whether a fair opportunity has been given to a party adversely affected or not, no general test can be formulated to apply in all circumstances. Ramaswami C. J. (the same learned Judge) in Harduti Mut Jute Mills v. State of Bihar (8) reiterated what is stated in the case (7) (above) and speaking again of "general requirement" observed-
"There is no such general requirement in the principles of 'audi alteram partem'. On the contrary, the principle is satisfied if the party adversely affected is given sufficient opportunity to know the case he has to meet and to answer that case at some stage and not at all the stages of the administrative proceeding".
11. Barring the two decisions, there is no direct authority in the large number of cases cited by the learned counsel for the parties.
12. The proceedings arose under Act 40 of 1971. The Estates Officer under the Act has to consider the objections and pass orders and not by the appellate tribunal. The analogy of Civil Courts having regard to the constitution, their power and the Code that regulates their procedure the analogy is not apposite.
13. To sum up: the Estates Officer who had issued the notice under Section 4, did not consider the representation made by the tenant. The appellate authority on this question came to the conclusion that such a representation in Ex. A-1 was made but was not considered. In such circumstances following the view taken by Megarry J. in Leary's case (2) (above) in United Kingdom I think it is not open for the appellate authority to consider the question in the appeal on merits of the disputes. There are two views possible in this regard in my view t would strengthen the principle of natural justice in adopting the course decided in Learry's case (2) (supra). Therefore the order of the appellate authority in C. M. A. N. 2 of 1978 dated July 6, 1978 and the order of the Estates Officer, Civil Aviation Department, Madras Region (the second respondent) dated December 15, 1977 in NOM/4 (2) ESJ are hereby quashed. The subject matter is remitted to the Estates Officer to consider the representation in Ex A-1 made by the tenant on December 11, 1977 and to pass order in accordance with law. The writ petition is accordingly allowed. No order as to costs. Advocate's fee Rs. 150/-.
14. Petition allowed.