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1968 DIGILAW 388 (ALL)

Mohd. Ishaque v. State of Uttar Pradesh

1968-10-17

SATISH CHANDRA

body1968
JUDGMENT Satish Chandra, J. - This is a plaintiff's appeal. It arises out of a suit for a declaration and an injunction. 2. The plaintiffs claimed that they were born citizens of India. On account of the panic created by the riots that took place at Aligarh in March, 1950 they temporarily migrated to Pakistan with the intention of coming back to India after restoration of the normal conditions. Owing to restrictions on travel between the two countries they could not come back without a passport. They, therefore, came back on a Pakistani passport. On the expiry of the period of stay permitted by the visa granted to them, the authorities threatened to deport the plaintiffs out of India. They filed a suit No. 139 of 1958 for restraining the authorities from carrying out their threats. The suit was decreed on 30th November, 1959, on the finding that till the Central Government had determined the citizenship of the plaintiffs under the Citizenship Act, 1955, the defendants would not deport the plaintiffs to Pakistan. Thereafter the Central Government issued notices to the plaintiffs asking them to make any representation which they wished to make and to adduce material in support of the contention that they had not voluntarily acquired the citizenship of Pakistan. The plaintiffs thereupon filed a representation with the Central Government. After considering it the Central Government on 28th January, 1961, passed an order declaring that the plaintiffs had voluntarily acquired the citizenship of Pakistan. The plaintiffs came to the Court for a declaration that this order was illegal and unenforceable and for an injunction restraining the defendants from deporting the plaintiffs out of India. 3. In the pleadings as well as in both the courts below the impugned order was challenged on two grounds. It was urged that the rules of evidence framed under the Citizenship Act were invalid and secondly that the Government did not afford the plaintiffs an opportunity of oral hearing for which they had made a specific request. The first point has been negatived by both the courts below in view of the decisions in Khalil Ahmad v. State of U.P., 1962 ALJ 123 and Union of India v. Yaqub Ali Khan, A.I.R. 1963 Alld. 205. Learned counsel for the appellants has not challenged this finding before me. 4. The first point has been negatived by both the courts below in view of the decisions in Khalil Ahmad v. State of U.P., 1962 ALJ 123 and Union of India v. Yaqub Ali Khan, A.I.R. 1963 Alld. 205. Learned counsel for the appellants has not challenged this finding before me. 4. In respect of the second point it was urged that the law does not impose any obligation upon the Central Government to give an opportunity of oral hearing. The requirements of natural justice that the plaintiff be informed of the material against him and be afforded an opportunity to have his say in respect of it and to adduce his own evidence before deciding the matter was fully complied with in the present case. The impugned order could not be characterised as violative of the principles of natural justice. Learned counsel for the appellants attempted to impugne this finding, but I am satisfied that the view taken by the courts below was correct. In F.N. Roy v. Collector of Custom, A.I.R. 1957 SC 648 the Supreme Court held that there was no rule of natural justice that a person is entitled to a personal hearing. 5. Learned counsel then raised a fresh point. It was urged that it is settled that the jurisdiction of the Union Government to decide the citizenship of a person under Section 9 of the Citizenship Act is a quasi-judicial function. The principles of natural justice govern it. It was urged that one of the requirements of the principles of natural justice was that the order must be a speaking order. It ought to state the reasons for the conclusions stated in it. If an order violates the principles of natural justice it is in the eye of law a nullity. 6. I am not aware that one of the principles of natural justice is that the order ought to be a reasoned order. In English Jurisprudence natural justice is one of key concepts. It has been evolved to ensure fair adjudication wherever rights of individuals are affected. Natural justice comprises two basic rules. One is the principle of fairness and impartiality known as the bias rule (nemo debet esse judex in sua propria cause); and the other is the right to be heard (audi alterem partem) , the hearing rule. These have been described as the twin pillars supporting the concept of natural justice. Natural justice comprises two basic rules. One is the principle of fairness and impartiality known as the bias rule (nemo debet esse judex in sua propria cause); and the other is the right to be heard (audi alterem partem) , the hearing rule. These have been described as the twin pillars supporting the concept of natural justice. 7. Relying on its decision in Union of India v. T.R. Verma, A.I.R. 1957 SC 882 the Supreme Court in Phulbari Tea Estate v. Its Workmen, A.I.R. 1959 SC 111 held that broadly the rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. The same principles were reiterated by the Supreme Court in State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, A.I.R. 1961 SC 1623. Neither on principles nor on authority could it be said that the principles of natural justice require that the ultimate order must be a speaking one. 8. In Madhya Pradesh Industries Ltd. v. Union of India, A.I.R. 1966 SC 671 Subba Rao J. observed :- " ...... Our Constitution posits a welfare State.............................. In the context of a welfare State; administrative tribunals have come to stay. Indeed, they are the necessary concomitants of a welfare State. But arbitrariness in their functioning destroys the concept of a welfare State itself. Self-discipline and supervision exclude or at any rate minimise arbitrariness. The least a tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness: It gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory Court to keep the tribunals within bounds. A reasoned order is a desirable condition of judicial disposal." 9. These observations were followed by the Supreme Court in Bhagat Raja v. Union of India, A.I.R. 1967 SC 1606. 10. A reasoned order is a desirable condition of judicial disposal." 9. These observations were followed by the Supreme Court in Bhagat Raja v. Union of India, A.I.R. 1967 SC 1606. 10. On a review of these and other judgments of the Supreme Court Pathak, J. (with whom Asthana, J. agreed) in Haji Manzoor Ahmad v. Stale of U.P., 1908 ALJ 809 observed that the Supreme Court placed the necessity for giving reasons on two broad grounds. The first arose out of the need to exclude or minimise arbitrariness on the part of the authority making the order, and the second arose upon the need to make the order amenable to effective judicial scrutiny by the Supreme Court. The requirement of a reasoned order, therefore, was not held to be one of the principles of natural justice itself but a concomitant of the judicial process in a welfare State. 11. One basis of the requirement being to exclude or minimise arbitrariness it would be difficult to say that an order which did not contain reasons would automatically be a nullity in the eye of law. If it is a nullity, then the courts would have no option but to declare it. But there have been cases where though a quasi-judicial order was not a speaking one yet it was upheld. In Nand Rain Hanat Ram v. Union of India, A.I.R. 1966 SC 1922 the Supreme Court rejected the argument that the impugned order was bad because no reasons were stated because on the facts it was plain as a pike-staff that the State Government had no alternative but to cancel the lease; the absence of any reasons in the order on review could not possibly leave any-body in doubt as to what the reasons were. It was held that in the setting of facts the reasons were so obvious that it was not necessary to set them out. A quasi-judicial order which does not state reasons may be defective, improper or may also be valid, depending on facts of each case. In this situation it will be difficult to say that such an order would be void abinitio or a nullity in law. It would, in my opinion, suffer from a material irregularity and to be a voidable, and not a void order. 12. If the order is treated as voidable, then it has to be voided on that ground. In this situation it will be difficult to say that such an order would be void abinitio or a nullity in law. It would, in my opinion, suffer from a material irregularity and to be a voidable, and not a void order. 12. If the order is treated as voidable, then it has to be voided on that ground. The objection for the respondents that no such plea was taken in the plaint or urged in any of the courts of facts and, therefore, the appellants could not be permitted to raise it for the first time, gains value. The plea is a mixed one. Several questions of fact have necessarily to be gone into. It has to be seen whether the Central Government acted properly or whether the action smacks of arbitrariness. The respondents could lead evidence to show that the facts were so clear that a detailed order was not needed. Further, it may be that the Central Government recorded reasons and communicated them to the plaintiffs subsequently. If a plea had been taken an issue would have been struck on the point and the respondents would have adduced mate-rial to satisfy the Court that the order was under the circumstances of the case a proper one. Under the circumstances the plea, which is a mixed one, cannot be entertained for the first time in a second appeal. 13. The appeal, therefore, fails and is accordingly dismissed with costs.