Andhra Pradesh High Court - Amravati
Ch Jayasri vs State Of Andhra Pradesh, on 20 March, 2020
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.7720 of 2020
ORDER:
1. This writ petition under Article 226 of Constitution of India is filed, questioning the order passed by 3rd respondent in PE-26/2020- JA(B3)-DCP&EVSKP dated 16.03.2020, declare the same as illegal, arbitrary and without jurisdiction, consequently direct 3rd respondent to permit the petitioner to conduct business.
2. The petitioner is the licensee of M/s.Veeranjaneya Restaurant and Bar, Visakhapatnam. 3rd respondent issued show cause notice and also passed order of suspension in PE-26/2020-JA(B3)- DCP&EVSKP dated 24.02.2020, wherein it is stated that the Prohibition & Excise Superintendent has submitted a report stating that on 21.02.2020 at about 13:00 hours, as per the instructions of Prohibition & Excise Enforcement Wing, Visakhapatnam, the Prohibition & Excise, Enforcement Wing visited the bar premises and found one person conducting sale of liquor at the counter of the said bar and on questioning the said person, he disclosed his identity and on verification of the stock it was found that there was difference and the Prohibition & Excise, Inspector, scanned the heel numbers printed on the bottles, found 32 bottles belonging to various government retail outlets.
3. 3rd respondent is licensing authority and as per Section 31 of A.P Excise Act, licensing authorities are conferred with power either to suspend or cancel the license. Therefore, 3rd respondent in exercise of quasi judicial power can pass order, but it is subject to revision/appeal and that remedy under Article 226 of Constitution of 2 India is available, when the authorities are conferred with quasi judicial power, it is obligatory on the part of authorities to give reasons for passing impugned order.
4. A bare look at the order impugned in the writ petition, it is clear that no reason was assigned for rejecting the explanation submitted by the petitioner, with reference to the records available and simply found it not satisfactory. Thus, the order of 3rd respondent is contrary to principles of natural justice, requested to set aside the same.
5. During hearing the learned counsel for the petitioner Sri O. Manohar Reddy has drawn the attention of this Court to the order dated 16.03.2020 passed by 3rd respondent, notice dated 24.02.2020 so also explanation of petitioner to substantiate his contention, more particularly, non-consideration of explanation submitted by the petitioner, with reference to the material on record. Hence, on the ground of non-consideration of explanation which is contrary to principles of natural justice, the order is liable to be set aside, requested to set aside the same.
6. Whereas, the learned Assistant Government Pleader for Prohibition & Excise fairly conceded that no reason was assigned by 3rd respondent while passing the impugned order, requested to remand the matter to 3rd respondent.
7. The factum of granting 2B license to the petitioner for running restaurant and bar and the question of visiting bar premises by officials of Prohibition & Excise is also not in dispute, but finding 3 number of bottles with different heel numbers belonging to government retail outlets is a serious question of disputed fact. The Prohibition & Excise, Inspector, Enforcement Wing on verification found several bottles of different brands and sizes with heel numbes belong to government retail outlets. Thereupon, notice was issued to the petitioner under proviso to Section 31 of A.P Excise Act, suspended the bar license. The same is questioned before this Court in W.P No.4978 of 2020, this Court set aside the suspension order, while permitting the respondents to take appropriate action in accordance with law by issuing show cause notice to suspend the license of the petitioner, if advised. In terms of permission granted by this Court to take appropriate action, again another show cause notice was issued on 02.03.2020, calling upon the petitioner to submit his explanation as to why his 2B license should not be suspended, the petitioner submitted a representation dated 09.03.2020 and after considering the representation, 3rd respondent passed the impugned order dated 16.03.2020, which is now under challenge before this Court on the sole ground that the order is bereft of reasoning and the explanation submitted by the petitioner was not considered. In the absence of any reasons, the order is liable to be set aside.
8. The learned Assistant Government Pleader for Prohibition & Excise fairly conceded the defect in the order. however, it is relevant to mention the specific conclusion arrived by 3rd respondent for better appreciation and the same is extracted hereunder:
"The explanation has been examined carefully with reference to the material available on record and found that it is not convincing and satisfactory."4
The earlier paras of the order impugned in the writ petition, prior to the conclusion recorded above is only narration of facts and observations of this Court in W.P.No.4978 of 2020. The petitioner though submitted lengthy explanation to show cause notice raising several contentions, none of them were considered by 3rd respondent for one reason or the other, simply rejected the explanation on the ground that it is not convincing and satisfactory. The reason assigned by 3rd respondent in passing the order is illegal and arbitrary, since such conclusion was arrived without application of mind by 3rd respondent.
9. Every administrative order or quasi judicial order must disclose the reason, which is heart and soul of the order. Time and again, the Apex Court and this Court issued certain guidelines to be followed for drafting orders by Quasi Judicial Authorities and highlighted the contents of an order or judgment.
What an order shall contain normally is not specified anywhere but the order must be reasoned one, since the judgment or order in its final shape usually contains in addition to formal parts:- (i) A preliminary or introductory part, showing the form of the application upon which it was made, the manner in which and the place at which, the writ or other originating process was served, the parties appearing any consent, waivers, undertakings or admissions given or made, so placed as to indicate whether they relate to the whole judgment or order or only part of it, and a reference to the evidence upon which the judgment or order, is based and (ii) A substantive or mandatory part, containing the order made by the Court" as has been said in Halsbury's Laws of England (4th 5 Edition, Volume 26 P. 260). Thus, in view of the requirements of an order or judgment referred above, an order impugned shall contain the reasoning, since, the Quasi Judicial Authority speaks with authority by his order. The strength of an order lies in its reasoning and it should therefore be convincing. Clarity of exposition is always essential. Dignity, convincingness and clarity are exacting requirements but they are subservient to what, after all, is the main object of an order, which is not only to do but to seem to do justice. In addition to these cardinal qualities of a good order, there are the attributes of style, elegance and happy phrasing which are its embellishments. In the words of Former Chief Justice of the Supreme Court Sabyasachi Mukharji, the requirement of a good judgment is reason. Judgment is of value on the strength of its reasons. The weight of a judgment, its binding character or its persuasive character depends on the presentation and articulation of reasons. Reason, therefore, is the soul and spirit of a good order. Equity, justice and good conscience are the hallmarks of judging. One who seeks to rely only on principles of law, and looks only for the decided cases to support the reasons to be given in a case or acts with bias or emotions, loses rationality in deciding the cases. The blind or strict adherence to the principles of law sometimes carries away a judge and deviates from the objectivity of judging issues brought before him. Justice M.M. Corbett, Former Chief Justice of the Supreme Court of South Africa, recommended a basic structural form for order/judgment writing, which is as follows:
"(i) Introduction section;
(ii) Setting out of the facts;
(iii) The law and the issues;6
(iv) Applying the law to the facts;
(v) Determining the relief; including costs; and
(vi) Finally, the order of the Court."
Keeping in view various principles and observations including the definition of order and judgment, the Apex Court laid down certain guidelines for writing judgments and orders in "Joint Commissioner of Income Tax, Surat, v. Saheli Leasing and Industries Limited (Civil Appeal No. 4278 of 2010)" in para No. 7 of the judgment and they are extracted hereunder:
"7. These guidelines are only illustrative in nature, not exhaustive and can further be elaborated looking to the need and requirement of a given case:-
(a) It should always be kept in mind that nothing should be written in the judgment/order, which may not be germane to the facts of the case; It should have a co-relation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment/order.
(b) After preparing the draft, it is necessary to go through the same to find out, if anything, essential to be mentioned, has escaped discussion."
(c) The ultimate finished judgment/order should have sustained chronology, regard being had to the concept that it has readable, continued interest and one does not feel like parting or leaving it in the midway. To elaborate, it should have flow and perfect sequence of events, which would continue to generate interest in the reader.
(d) Appropriate care should be taken not to load it with all legal knowledge on the subject as citation of too many judgments creates more confusion rather than clarity. The foremost requirement is that leading judgments should be mentioned and the evolution that has taken place ever since the same were pronounced and thereafter, latest judgment, in which all previous judgments have been considered, should be mentioned. While writing judgment, psychology of the reader has also to be borne in mind, for the perception on that score is imperative.
(e) Language should not be rhetoric and should not reflect a contrived effort on the part of the author.
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(f) After arguments are concluded, an endeavour should be made to pronounce the judgment at the earliest and in any case not beyond a period of three months. Keeping it pending for long time, sends a wrong signal to the litigants and the society.
(g) It should be avoided to give instances, which are likely to cause public agitation or to a particular society. Nothing should be reflected in the same which may hurt the feelings or emotions of any individual or society." In view of the principles laid down by the Apex Court, a judgment or an order shall contain the above seven minimum requirements i.e., a to g. In the present case, the order passed by 3rd respondent is bereft of such requirements. Therefore, the order of 3rd respondent is against the requirements. When the order is passed without reasoning, it is not a judgment in the eye of law for the reason that the requirement of reasoning either by Quasi Judicial Authority or Court is to convey the mind of the Quasi Judicial Authority or Judge while deciding such an issue before the Authority or Court. Where the Authority or Court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons, even though the point has not been framed by the Quasi Judicial Authority or Court, there is substantial compliance and the order is not in any manner vitiated. Where there is an honest endeavour on the part of the Authority to consider the controversy between the parties and there is proper appraisement of the respective cases, weighing and balancing of the defence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment/order of the Court or Authority, it would be a valid judgment or order even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the Court to frame points for determination and to cite reasons for the decision is to focus attention of the Quasi 8 Judicial Authority or Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enabling them to know the basis of the decision and if so considered appropriate and so advised, to avail the remedy of revision or appeal permitted by legislation. From a bare reading of the principle laid down in the above judgment, the requirement of recording of reasons is only to show that the Court has focused concentration on rival contentions and to provide litigant parties an opportunity of understanding the ground upon which the decision is founded. Even if it is an order under the provisions of the Act, still these basic requirements cannot be ignored by Courts. In such case, a Quasi Judicial Authority or Judge is required to apply his mind and give focused consideration to rival considerations raised by both parties but in this case the Quasi Judicial Authority i.e. 3rd respondent recorded a finding without independent consideration and appreciating the defence set up by the petitioner. Such order or judgment without independent consideration is not legally sustainable since Quasi Judicial Authority or Courts do not act blindly or mechanically, pass orders or judgments. Courts and Quasi Judicial Authority ought to be cautious and only on being satisfied that there is no fact which needs to be proved despite being in admission, should proceed to pass order or judgments. Thus, in the absence of application of mind in arriving at such conclusion without considering the contentions independently is nothing but a cryptic Order. The need for recording of reasons is greater in a case where the order is passed at the original stage, a decision without reasons is like grass without root, the requirement to record reasons is one of the principles of natural justice as well and where a statute required recording of reasons in 9 support of the order, it must be done by the authorities concerned as held by the Apex Court in S.M. Mukerji v. Union of India [1990 Crl.L.J.2148]. The increasing institution of cases in all Courts and Quasi Judicial Authorities in India and the resultant burden upon the Courts and Quasi Judicial Authorities has invited attention of all concerned in the justice administration system. Despite heavy quantum of cases it would neither be permissible nor possible to state as principle of law that while exercising power of judicial review on administrative action and more particularly order of Quasi Judicial Authority before the High Court, providing of reasons can never be dispensed with. The doctrine of 'audi alteram partem' has three basic essentials, firstly; a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard, secondly; the concerned authority should follow fair and transparent procedure and lastly; the authority concerned must apply its mind and dispose of the matters by reasoned order or speaking order. This has been uniformly applied by Courts in India and abroad [vide Assistant Commissioner, Commercial Tax v. M/s. Shukla (2010) 4 SCC 785].
10. Here in this case, the order is passed totally discarding the explanation and findings recorded by the Quasi Judicial Authority. When the Quasi Judicial Authority passed such order without considering the requirements, such order of 3rd respondent cannot be sustained. Even otherwise, it is the duty of Quasi Judicial Authority to state its reasons on each issue by due application of mind, clarity of reasoning and focused consideration; a slipshod consideration or cryptic order without due reflection on issues raised in the matter may render such decree unsustainable and therefore, hasty adjudication must be avoided and 10 each and every matter that comes to the Quasi Judicial Authority must be examined with seriousness it deserves as held by the Supreme Court in Board of Trustees of Martyr Memorial Trust and another v. Union of India and another [2012 (10) SCC 734].
11. From the principles laid down in the above judgments, the order of 3rd respondent/Quasi Judicial Authority is nothing but a slipshod one without focused consideration on the issues raised by the petitioner herein. In such case, the same cannot be sustained.
This Court reiterated the same principles in "Leela Enterprises, Rep. by its Proprietor K.Surender and another v. Smt.Kamar Sultana @ Kamer Hassan1"
12. As discussed above, the order under challenge is contrary to law declared by the Apex Court and contrary to principles of natural justice, thereby the order is liable to be set aside. The question of remanding the matter to 3rd respondent as requested by learned Assistant Government Pleader for Prohibition & Excise, does not arise, since, this Court is not exercising appellate jurisdiction sitting over the order of 3rd respondent in appeal. hence, the request of learned Assistant Government Pleader for Prohibition and Excise is rejected.
13. In the result, the writ petition is allowed setting aside the order passed by 3rd respondent in PE-26/2020-JA(B3)-DCP&EVSKP dated 16.03.2020, declaring the same as illegal and arbitrary. There shall be no order as to costs.
1 2017 (5) ALT 75 11
14. Consequently, miscellaneous petitions, pending if any, shall stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 20.03.2020 Rvk