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Allahabad High Court · body

2009 DIGILAW 3182 (ALL)

KAMAL MIMANI v. STATE OF U. P.

2009-09-18

A.P.SAHI

body2009
JUDGMENT Hon’ble A.P. Sahi, J.—This petitioner questions the legality and validity of the order passed by Allahabad Development Authority, relating to demolition of the alleged unauthorized constructions raised by the petitioner, over a Plot of land measuring 152.65 Sq. Metres situate within the premises of Bungalow No. 17, Tagore Town, Allahabad, and for a direction commanding the Development Authority to supply a copy of the letter dated 4.3.2003 with a further permission to the petitioner to submit his reply in order to meet the objections raised by the Development Authority on the application of the petitioner regarding compounding. A further prayer for issuing any other suitable writ or order has also been made in view of the facts and circumstances of the case. 2. The facts shorn of details are that the petitioner purchased the aforesaid plot from the erstwhile owners through a sale-deed dated 31.8.2000. After having purchased the land, the petitioner submitted a Map for being sanctioned by the Allahabad Development Authority under the provisions of The U.P. Urban Planning Development Act, 1976 and the Regulations framed there under. Permission is required as per Section 14 of the aforesaid Act. According to the petitioner, the constructions were raised when on 31.7.2002, a notice was issued to the Petitioner calling upon him to explain about the alleged unauthorized constructions. The said Notice was dispatched by the Junior Engineer of the Development Authority at Allahabad in which there was an offer made that the petitioner may apply for compounding of the unauthorized construction in view of the scheme as floated under the orders of the State Government namely “Saral Shaman Yojna”. A copy of the said scheme together with its Annexures has been placed before the Court by the learned counsel for the petitioner. 3. In response to the said Notice dated 31.8.2002, the Petitioner filed an Application for compounding of that portion of the building which was stated to be in violation of the sanctioned Map. Alongwith the Application, the requisite fee of Rs. 10,000/- for processing the same had also been deposited. It is the contention of the petitioner that without informing the petitioner about the out come of the said application moved for compounding, the Respondents, at the instance of the complainant and administration, proceeded to pass orders of demolition and further acted upon the same by resorting to demolition. 10,000/- for processing the same had also been deposited. It is the contention of the petitioner that without informing the petitioner about the out come of the said application moved for compounding, the Respondents, at the instance of the complainant and administration, proceeded to pass orders of demolition and further acted upon the same by resorting to demolition. The order to that effect passed by the Development Authority impugned in the present petition dated 27.9.2007 is Annexure-4 to the writ petition. 4. The petitioner filed an Appeal before the Commissioner which was dismissed on 21.11.2007 against which the petitioner preferred a Revision before the State Government which has also been dismissed on 14.12.2007. Aggrieved, the petitioner has filed the present petition. 5. It is contended on behalf of the Petitioner that the stand taken in the counter-affidavit that the Petitioner was served with a Notice on 4.3.2003 to remove the defects as pointed out therein for the purposes of compounding is wrong inasmuch as the said Notice was allegedly served on one Abdul Waheed and not on the petitioner and that there is no reference about the service of the said Notice on the petitioner either in the order of the Development Authority, the order of the Commissioner or of the State Government. 6. It is further submitted that the allegation of having served the order dated 13.5.2003 whereby the compounding application of the petitioner is stated to have been rejected, is absolutely false and endorsement made on the receipt dated 19.5.2003 is fake inasmuch as the petitioner’s father was through out living at Kolkata at that point of time when the copy of the order is said to have been served on the Petitioner. It has been contended that the order dated 13.5.2003 has seen the light of the day for first time before this Court in spite of the fact that the Petitioner has continuously demanded the copy of the same under the Right to Information Act and which has not been supplied to the petitioner till date. 7. The aforesaid facts have been denied by the respondents in their counter-affidavit and the records have been produced to support the same by the learned counsel representing the Development Authority. 7. The aforesaid facts have been denied by the respondents in their counter-affidavit and the records have been produced to support the same by the learned counsel representing the Development Authority. The Respondents have taken a stand that the petitioner has admittedly deviated from the sanctioned Map and raised constructions and, as such, the writ petition does not deserve to be entertained on the strength of mere technicalities. 8. I have heard Sri Amit Saxena, learned counsel for the Petitioner, Sri B.B. Paul, learned counsel for the Development Authority and Sri M.D. Singh Shekhar, learned Senior Advocate assisted by Sri S.K. Tyagi, for the Respondent No. 5. 9. Since affidavits have been exchanged between the parties, they have consented jointly for the final disposal of the matter. Accordingly, in view of the Rules of the Court, the matter is being disposed of finally at this stage itself. 10. Sri Amit Saxena has vehemently urged that the petitioner had moved an Application for compounding and he was never intimated about the outcome of the same. It is contended that the order dated 13.5.2003 even if recorded in the file, was never communicated to the petitioner. He further submits that if that was so, then the same ought to have been mentioned in the order of the Commissioner or of the State Government. The submission is that it was for the first time that the petitioner came to know about the said order through the order dated 27.9.2007. It is submitted that even the said order does not indicate as to how the order dated 13.5.2003 had been served. It is for the first time through the counter-affidavit that the service was alleged through the father of the petitioner and which is sought to be substantiated with the production of the records. Sri Saxena contends that the petitioner was taken by surprise when it was recited in the order dated 27.9.2007 that his Application for compounding had already been rejected in the year 2003. It is urged that after the petitioner had submitted the application for compounding on 31.10.2002, no communication was ever tendered to the petitioner, to either remove the defects in the compounding Map or the order dated 13.5.2003 itself. 11. It is urged that after the petitioner had submitted the application for compounding on 31.10.2002, no communication was ever tendered to the petitioner, to either remove the defects in the compounding Map or the order dated 13.5.2003 itself. 11. To ascertain the correctness or otherwise of the said allegations, the Court has also gone through the records and it appears that the order dated 13.5.2003 is noted in the order-sheet at page 7 thereof. The contention that the said order was served on the petitioner’s father on 19.5.2003 has been vehemently denied and it has been categorically stated in the rejoinder-affidavit that the petitioner’s father had never received any such order nor was it served on him and the alleged endorsement made on which reliance has been placed is manipulated. 12. Whether the said order was served on the petitioner or not was a clear ground raised in the memo of appeal before the learned Commissioner as Ground Nos. 11 and 15. The learned Commissioner has not recorded any finding which may establish that the order dated 13.5.2003 had ever been served on the petitioner. A perusal of the entire order indicates that the learned Commissioner has not at all adverted to this aspect of the matter. In such a situation, where there is no such finding by the learned Commissioner and there is a clear denial by the petitioner of having received any such order, the only conclusion that can be drawn is that the said order dated 13.5.2003 as mentioned in the order dated 27.9.2007 was not tendered to the petitioner. Further the petitioner was not provided the same inspite of repeated requests made under the Right to Information Act. The learned Commissioner ought to have tendered his opinion and recorded a finding on this issue which has not been done. 13. On the other hand, the learned Commissioner has recorded a finding that prior to passing of the order dated 13.5.2003, a Notice had been issued on 4.3.2003 calling upon the petitioner to remove the defects as pointed out and to file a reply to the same. 13. On the other hand, the learned Commissioner has recorded a finding that prior to passing of the order dated 13.5.2003, a Notice had been issued on 4.3.2003 calling upon the petitioner to remove the defects as pointed out and to file a reply to the same. I have perused the records which were produced by Sri B.B. Paul, learned counsel for the Development Authority and it is clear from the endorsement made on the receipt of the said Notice that one Waheed Ahmad had allegedly received the Notice which was countersigned by the process server Rajmani on 22.3.2003. There is no endorsement either of the petitioner or any one connected with him to establish that the said Notice dated 4.3.2003 was served on the petitioner. This fact clearly establishes that the petitioner had no notice of the said proceedings that were being undertaken in respect of the disposal of the Application for compounding dated 31.10.2002. The Petitioner was, therefore, not aware of the order dated 13.5.2003 which was reflected for the first time in the order dated 27.9.2007. 14. Apart from this, it is peculiar that the order dated 13.5.2003 has been recorded in the order-sheet at page 7 whereas the proceeding in respect of the calculation made and the notice dated 4.3.2003 have all been recorded in the subsequent pages at page Nos. 8 and 9 respectively. However, the situation is doubtful as to whether page No. 7 was inserted later on or the pages were numbered incorrectly by the record keeper. 15. Sri Amit Saxena further contends that the manner in which the letters have been numbered for being dispatched to the petitioner also reflect about the doubtful manner in which the respondents have proceeded to prepare the documents to non-suit the petitioner. He has further submitted that if the Application for compounding had already been decided then there was no occasion for submitting a report on 28.11.2007 in that regard. For this, Sri Saxena has invited the attention of the Court to Annexure-CA-21 filed alongwith the counter-affidavit. A perusal of the said document indicates that it appears that the officials of the Development Authority before proceeding for actual demolition had prepared some report to point out the area about which the complaints had been made and demolition was to be undertaken. A perusal of the said document indicates that it appears that the officials of the Development Authority before proceeding for actual demolition had prepared some report to point out the area about which the complaints had been made and demolition was to be undertaken. In view of this, no capital can be made out by the petitioner on this score. 16. Sri B.B. Paul, learned counsel for the Development Authority and Sri M.D. Singh Shekhar have both urged that the order dated 27.9.2007 clearly records the extent of deviation made by the petitioner and in the absence of any explanation on the merits of the order, the petitioner should not be allowed to succeed on mere technicalities. They contend that the deviations have been made and which fact is evident from the application moved by the petitioner himself for compounding. 17. The aforesaid submission has to be considered in the light of the fact that the petitioner had moved an Application for compounding which was allegedly disposed of on 13.5.2003. The petitioner had taken steps and made efforts for compounding under the Scheme. In the event the petitioner had been given an appropriate opportunity as was sought to be done through the Notice dated 4.3.2003, the petitioner could have submitted his explanation whatever worth it was. It could then have been examined as to whether the deviation made in the set back and constructions contrary to the sanctioned Plan were in reality a real deviation or not. The petitioner having been denied opportunity, it cannot be accepted that the petitioner had no explanation at all. For this, the petitioner will be entitled to demonstrate before the Authority that he had moved the application which deserves to be allowed in terms of “Saral Shaman Yojna” that was admittedly applicable at the time when the petitioner had moved the application for compounding. In such view of the matter, it would not be appropriate for this Court to assume that the petitioner has deviated to the extent that it cannot be compounded. As a matter of fact it was this issue which had to be examined by the Development Authority with a proper notice to the petitioner. 18. Section 27 (1) proviso recites that if the authority is proceeding to demolish unauthorised constructions, then the person concerned has to be given a reasonable opportunity of hearing. As a matter of fact it was this issue which had to be examined by the Development Authority with a proper notice to the petitioner. 18. Section 27 (1) proviso recites that if the authority is proceeding to demolish unauthorised constructions, then the person concerned has to be given a reasonable opportunity of hearing. The petitioner was put to notice as recited in the impugned order dated 27.9.2007. He was further served with another notice dated 31.8.2002. This notice invited the petitioner in the same proceedings to submit a compounding application under the scheme referred to herein above. The petitioner submitted his application on 31.10.2002 and deposited the requisite fee which fact is not denied. It is, therefore, obvious that the respondents withheld the proceedings of demolition subject to the decision on the compounding application. Thereafter, the alleged notice dated 4.3.2003 was despatched and as held herein above was not served on the petitioner. The impugned order of the authority dated 27.9.2007 is completely silent on the aforesaid development and abruptly concludes that the compounding application had been rejected on account of certain deficiencies. The authority is completely silent on the issue of service of the notice dated 4.3.2003 which could have directly linked the passing of the order on 13.5.2003. On the contrary as is evident from the record, the notice was allegedly served on one Abdul Waheed, who it is not known as to how and in what capacity was he authorized to receive such notice, nor any connection with the petitioner could be established. The absence of any recital in the impugned order dated 27.9.2007, therefore, is sufficient to allow the Court to draw an adverse inference in this regard. The passing of the order after almost four years, therefore, raises serious doubts about the manner of functioning of the authority. The notice in such circumstances cannot be presumed to have been served on the petitioner and the same appears to have been received by a stranger whose identity is not established so as to connect him with the petitioner. 19. The principles of natural justice do not conform to a straight jacket formula but in the instant case, in a matter relating to compounding or consequential demolition, the petitioner ought to have been given an opportunity as contemplated under the Act itself. 19. The principles of natural justice do not conform to a straight jacket formula but in the instant case, in a matter relating to compounding or consequential demolition, the petitioner ought to have been given an opportunity as contemplated under the Act itself. As pointed out above, the Notice dated 4.3.2003 was served on a stranger namely Abdul Waheed and there is no evidence of service of Notice on the petitioner. Thus, the conclusions drawn in the order dated 13.5.2003 in absence of the petitioner vitiates the same as being in violation of the principles of natural justice. There cannot be gainsaying that an order of demolition can be passed without proper opportunity. 20. Coming to the order of the learned Commissioner, it is evident that the Commissioner himself was of the opinion that the Development Authority had observed slackness in the matter and had allowed illegal constructions to mushroom in the area. However, the learned Commissioner failed to take notice of the fact that the Notice dated 4.3.2003 had been served on a stranger and not on the petitioner and further failed to record a finding about the service of the order dated 13.5.2003. In the absence of any cogent finding, the order of the Commissioner also stands vitiated inasmuch as the issue as to whether the principles of natural justice had been complied with or not are germane to the dispute and could not have been ignored. 21. The requirement of procedure to be followed by an appellate authority under various Statutes have been time and again explained as possession of the same powers that are with the authority of first instance. Even on the judicial side, the appellate Court enjoys co-extensive powers as that of the trial Court subject to any statutory limitation prescribed by the law maker. In my opinion the Commissioner, under the provisions presently involved, namely Section 27 (2) of the 1973 Act, enjoys similar powers and has similar obligations to discharge. 22. The question, therefore, is as to whether the Commissioner has to make any enquiry or record any finding on facts that are pleaded and are required to be gone into looking to their relevancy. The obvious answer is in the affirmative because of the requirement of the Statute and further because of the matter being subject to scrutiny by the State Government under Section 41 of the Act. The obvious answer is in the affirmative because of the requirement of the Statute and further because of the matter being subject to scrutiny by the State Government under Section 41 of the Act. If the Commissioner fails to record its findings or fails to consider a relevant aspect, it would be a burdensome exercise for the State Government to find it out in revision. It is for this reason that consideration of every relevant material is necessary and reasons have to be recorded for either accepting or not accepting a plea. This may not be compulsory i.e. recording of separate reasons, when in an order of affirmance, the appellate authority rests its decision on the same basis as the authority of first instance. Yet it may be necessary where an appeal is preferred on grounds of perversity, non-recording of findings on relevant material and legal issues that raise intricate question including mixed question of law and fact. 23. The Commissioner in this case has proceeded to undertake that exercise but failed to advert to the essential element of service of the notice dated 4.3.2003 even though he has made a mention of the same upon a perusal of the records, which have been placed before this Court as well. The State Government inspite of this plea having been raised committed the same error by simply affirming the order of the Commissioner. 24. The necessity and importance of looking into evidence by an appellate authority came to be explained by Justice John Hansen in his order dated 30.1.2008 while deciding an appeal as Appeals Commissioner of the International Cricket Council in the matter of alleged racial comments by cricket players during a cricket Match between India and Australia. The match referee, Mike Proctor ruled against Harbhajan Singh, who went up in appeal alleging that the statements of three Australian players deserved rejection, and consequently in the absence of any independent corroborative evidence, he deserved absolute remission. While discussing the necessity of the role of an appellate authority as a fact finding forum the following observations are worth quoting : “26. This misunderstands the process required of a fact finder, be it in a jury or a Judge in a Court of Law, or someone involved in disciplinary hearings such as we are concerned with here. While discussing the necessity of the role of an appellate authority as a fact finding forum the following observations are worth quoting : “26. This misunderstands the process required of a fact finder, be it in a jury or a Judge in a Court of Law, or someone involved in disciplinary hearings such as we are concerned with here. Finders of fact daily face a situation where there is a conflict of evidence between witnesses on an opposing side of a dispute. In serious criminal matters juries are routinely instructed by the presiding Judge that they can accept everything that is said by a particular witness, or reject it. They are told they may accept some of the evidence, and not other parts. They are also told, in making this assessment, that they can have regard as they think fit to the manner and demeanour of the witnesses as they gave that evidence. 27. The mere fact of such disputes does not excuse the fact finder from reaching a conclusion. It is a requirement of the finder of fact to consider all of the evidence and then determine which evidence, or which part of such evidence he, she or they will accept. It is often an invidious exercise, but one that, by necessity, must be taken. In this case it was the obligation of Mr. Proctor as the match referee, to make findings of fact. In the same way, invidious as it may be, I am confronted by the same obligation in this hearing.” 25. The Commissioner ought to have observed the aforesaid principles, and having not done so the same reflects a patent defect which deserves to be corrected. 26. There is yet another aspect which deserves mention that fairness in procedure is a sine qua non of the observance of principles of natural justice. The word “fair” and the adverb “fairly” have been explained in several dictionaries and to quote one of them for an appropriate understanding, I deem it proper to extract the following meaning as contained in Volume 7 of The Children’s Dictionary, Edited by Harold Wheeler, Standard Literature Company, page 1542. The same is extracted below : “Fair [I] (far), adj. Beautiful; pleasing to the eye; satisfactory; considerable; specious; just; above-board; moderately or passably good; unsoiled; free from blemish; clear; light-coloured; serene; advantageous; unobstructed; Courteous; obliging; legible. adv. The same is extracted below : “Fair [I] (far), adj. Beautiful; pleasing to the eye; satisfactory; considerable; specious; just; above-board; moderately or passably good; unsoiled; free from blemish; clear; light-coloured; serene; advantageous; unobstructed; Courteous; obliging; legible. adv. Civilly; in accordance with rule; on equal terms. n. A beautiful woman. v.i. To clear (of the weather). (F. beau, agreable a la vue, satisfaisant, juste, passable, pur, blanc, blond, favorable, directe, lisible; agreablement; une beaute; se rasserener.) This is one of those words whose precise meaning depends on the context. By a fair man we may mean either one with light hair, that is, fair-haired (adj.) and light-complexioned, or one who is just in his dealings. A just man is fair-minded (adj.) and can be trusted to act with fairness (far nes, n.) or impartiality. If we speak of a fair woman, however, we are generally understood to mean a woman of light colouring. The fair sex, or the fair, denotes women generally. A fair sum of money may be either a satisfactory sum or a considerable sum. In the phrases “A fair day’s wage for a fair day’s work” and “One should be fair to one’s opponents” the idea of justice is uppermost. If we say that a man’s conduct was fair, fairish (far ish, adj), or fairly (far li, adv. ) good, we mean that it was moderate, neither very good nor bad. One’s fair fame is one’s spotless reputation, a fair copy is a copy free from corrections, a fair view either an unobstructed or an impartial view, and a fair chance of success is one that promises well. Fair play means just dealing, treatment of all competitors alike, and as fair weather means mild or cloudless conditions, a fair-weather (adj.) friend is one whose friendship cannot be relied upon in, figuratively, stormy weather, that is, the time when we need him most. If we say that the wind stood fair for the harbour, we mean that it was just the right wind required to make the harbour. To speak fair means to speak kindly or justly. A boy may promise well or bid fair to become a clever engineer. To play fair or to hit fair, or to act fair and square (adv.), means to act or behave honestly, to play the game. To speak fair means to speak kindly or justly. A boy may promise well or bid fair to become a clever engineer. To play fair or to hit fair, or to act fair and square (adv.), means to act or behave honestly, to play the game. To win by fair means is to win without using trickery; to be in a fair way of winning is to have a good chance of winning; to be in a fair way of business is to have a prosperous business. We may speak of plausible promises or apparently favourable circumstances as being fair-seeming (adj.), and of a bland or plausible person as fair-spoken (adj.). Sailors make good use of a fair-lead (n.) or fair-leader (n.), which is a shaped block of wood or metal fixed in different parts of a ship to keep warps or ropes in a desired direction. Fair trade is reciprocity, or the international commercial system under which the goods of one country enter another on the same terms as those on which that country’s are received. The fairway (n.) is the open, navigable part of a river, channel, or harbour. In golf, it is that part of a course which is kept mown and free from obstructions, natural and artificial. Two opponents who are fairly (far li, adv.) matched are properly or fitly matched, but a man who is fairly exhausted is one who is completely exhausted. The word, however, usually means moderately, as when we say that we had fairly good weather over the week-end, or a fairly quick journey. When a player in Rugby football catches the ball from a kick or knock-on, or from a throw forward by an opponent it is called a fair catch (n.). The player must at once claim the catch by making a mark with his heel at the spot where he caught the ball, and this entitles him to a free kick. A fairing (far ing, n.) on an aeroplane is any covering to a strut, engine, or other part which leads the air easily round it and so decreases its resistance to the air. Common Teut. word. A.-S. faeger; cp. O.H.G. fagar, O. Norse fagr, and Goth. Fagr-s fit, cognate with Gr. peg-nynai to fasten. SYN.: adj. Beautiful, clear, honourable, just noble. ANT.: adj. Disfigured, dull, foul, fraudulent, unfair. Common Teut. word. A.-S. faeger; cp. O.H.G. fagar, O. Norse fagr, and Goth. Fagr-s fit, cognate with Gr. peg-nynai to fasten. SYN.: adj. Beautiful, clear, honourable, just noble. ANT.: adj. Disfigured, dull, foul, fraudulent, unfair. An unfair (adj.) decision is one not just or not impartial. In an unfair bargain one party may seek to take advantage of another; dishonest trading is unfair, and articles may be unfairly (adv.) priced or weighed. A game is spoilt by unfairness (n.) on the part of the players.” 27. The aforesaid degree of fairness has to be reflected when the authority proceeds to exercise its power inasmuch as the discretion vested in an authority has to be exercised in a judicious manner and not otherwise. How the authority should proceed to exercise a discretion and the meaning of the said word “discretion” has been discussed in detail in the case of Union of India v. Kuldeep Singh, (2004) 2 SCC 590 and in Reliance Airport Developers (P) Ltd. v. Airports Authority of India and others, (2006) 10 SCC 1 (para 26). 28. The Revision filed before the State Government and the order passed thereon, reflects the same position. The State Government has simply recorded the contentions raised and without affording any reason for its conclusion, has treated the revision to be without force and has dismissed it. The aforesaid procedure adopted by the State Government also does not conform to the legal principles inasmuch as the petitioner had raised specific grounds on the same issues of violation of the principles of natural justice on which no finding was returned by the State Government. The order records simply conclusions and no reasons and, therefore, suffers from the same infirmity. 29. In view of this, the order of the State Government also cannot withstand the scrutiny of the principles of natural justice. It has, time and again, been emphasised by this Court as well as by the Apex Court that recording of reasons after giving a reasonable opportunity of hearing is a sine qua non wherever civil consequences are involved. As pointed out herein above, the entire proceedings of rejecting the application of the petitioner for compounding and the consequential orders of demolition are based on erroneous considerations of law and fact and, as such, the orders deserve to be set aside. 30. As pointed out herein above, the entire proceedings of rejecting the application of the petitioner for compounding and the consequential orders of demolition are based on erroneous considerations of law and fact and, as such, the orders deserve to be set aside. 30. Before I part with the judgment, I deem it necessary to reiterate the well rooted principles of natural justice that have stood as sentinels, not only after our country has started functioning under a democratic constitution guaranteeing fundamental rights, but long before devised and enunciated by our own High Court during the days of colonial rule. Justice Mahmood in his dissenting minority view in Queen Empress v. Pohpi and others, ILR (XIII) Allahabad series Pg 171, had to state as follows : “There is another maxim which says Audi alteram partem - the meaning of which is that no one shall be condemned unheard. So at least says Mr. Broom in his celebrated work on legal maxims. Also there is equally as great an authority, if indeed not greater in point of jurisprudence than the authority of that maxim, and it is the saying of Seneca. It is this :-”Quicunque aliquid statuerit parte inaudita altera-Aquum licet statuerit, hand oequus fuerit.” This translated in simple English means, “Whoever may have decided anything, the other side remaining unheard, granted that his decision may have been just, will not have been just himself.” This is not only poetry but it is sound juristic sense, and I think it is the essence of this doctrine which has passed into a maxim, viz., Audi alteram partem. Be that so or not, I know this, speaking entirely for myself again, that it is to be impossible to conceive that any one, no matter how able and conscientious he may be, can with certainty undertake to say that he has arrived at right results in adjudicating upon a quarrel without giving both parties ample and equal opportunities of being heard. That this is my conviction is not entirely the result of what little I have learned of the English law, but it is the result of the study of Muhammadan jurisprudence also, to which I shall have to call attention, because that jurisprudence was the standing law of the land when the British rule cam to this part of the country. This case is from the district of Budaun, a territory ceded to the Honorable the East India Company by the Nawab Wazir of Oudh by the Treaty of the 10th November 1801 (Vide Aitchison’s Treaties; Vol. II, p. 100). That is to say, at the date of the cession the law in criminal cases was the Muhammadan law both substantive and adjective, and, it goes without saying, as a matter of international law, that when this annexation or cession of territory took place, the British rule took it subject to that law. That law requires that the litigants should be heard before their cases are decided. Under these conditions it is of course obvious that, unless there was express legislative sanction given by the sovereign authority to whom this territory had been ceded changing the old law, such old law would stand unchanged, because such is the notion of all civilized nations dealing with each other, especially in questions of cessions of territory. I have gone the length of reading out, but I think with full authority, a couplet of Seneca. It has been cited at least half a dozen times by eminent Judges in England, and I am glad to be able to follow them in this method; because I want to show that in India, too, poets, more modern no doubt than Seneca, have spoken out in the same fashion. One is the following couplet— Qarib hai yar roze maihshar Chhupega Kushton ka khun kyun kar Jo chup rahegi zubane khanjar Lahu pukarega aasteen ka. I will render this into English because in principle it represents exactly the same idea as that of Seneca, and it is of greatest practical importance inasmuch as it represents the feelings of a native of India. The couplet may be thus rendered into English : “O friend the day of judgment is near; how then will it be possible to conceal (by silence) the blood of those killed? Even if the tongue of the dagger will keep silence, the blood on the sleeve will speak out.” This is certainly as good jurisprudence as the lines of Seneca which I have read out. What does it mean? Even if the tongue of the dagger will keep silence, the blood on the sleeve will speak out.” This is certainly as good jurisprudence as the lines of Seneca which I have read out. What does it mean? It means that the hearing of the litigant is absolutely necessary, and if he is not heard there is no adjudication and no justice, and the only justice to be got will lie in the day of judgment. Having so far dwelt upon this aspect of the case, I think it is important for me now to examine in detail the provisions of the enactment regulating criminal appeals. I have intentionally dwelt so long on this part of the case, because I want to show that I take it, unless the contrary is demonstrated, as an undoubted proposition of our law, irrespective of statute and irrespective of any considerations other than the fundamental principles of jurisprudence, that whenever right is given to any party for purposes of putting forth his case, thereby it is necessarily implied that he must be head. In other words, whenever the doctrine, ubi jus ibi remedium applies, I must take it that when a man asserts a right he must be heard, because remedy itself implies the right and the claim to be heard in order to show to the Judge that there is a remedy to be awarded to the suitor.” 31. I thankfully acknowledge the discovery of the said judgment from my esteemed learned colleague His Lordship Justice Sunil Ambwani who has undertaken pains to compile such classics from our archives to provide material to the National Judicial Academy, Bhopal, on the subject of “Contribution to the development of Law” by High Courts all over the country. 32. The said principles on the administrative and quasi-judicial side gained importance gradually, and the famous English case of Ridge v. Baldwin and others, (1963) 2 All ER 66, decided by the House of Lords, came to be quoted and followed by our Courts. The march forward came with the decision in State of Orissa v. Dr. (Miss) Binapani Dei and others, AIR 1967 SC 1269 , and in the words of Justice Sarkaria in Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664 (para 28), which is as under : “28. ........This supposed distinction between quasi-judicial and administrative decisions, which was perceptibly mitigated in Dr. (Miss) Binapani Dei and others, AIR 1967 SC 1269 , and in the words of Justice Sarkaria in Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664 (para 28), which is as under : “28. ........This supposed distinction between quasi-judicial and administrative decisions, which was perceptibly mitigated in Dr. Bina Pani Dei case, was further rubbed out to a vanishing point in A.K. Kraipak v. Union of India......” 33. The decision in Swadeshi Cotton Mills case has laid threadbare the various shades of natural justice, even in matters of post decisional hearing, and the underlying principles of fair play have been emphasized as the backbone of all State actions. Paragraph Nos. 28 to 44 of the said decision are worth reminding particularly the concluding lines of para 44 which I am tempted to quote below : “44. ............But, to recall the words of Bhagwati, J., the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.” 34. There is yet another exhaustive judgment of the Apex Court recently delivered in the case of M/s. Nagarjuna Construction Co. Ltd. v. Govt. of Andhra Pradesh and others, JT 2008 (12) SC 371 (Paras 31 to 41). The under lying principles as explained above is stated in the following words in para 35 quoted below : “35. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play.......” 35. Accordingly, the writ petition is allowed. The order dated 13.5.2003 as contained in the records of the Allahabad Development Authority produced before this Court is quashed. The order dated 27.9.2007, the order dated 21.11.2007 and the order of the State Government dated 14.12.2007 are also set aside. The matter stands remitted back to the Development Authority. The competent authority shall first proceed to examine the claim of the petitioner for compounding in the light of the scheme “Saral Shaman Yojna” and pass appropriate orders in accordance with law after giving a reasonable opportunity to the petitioner as contemplated under Section 27 (1) of the Act. 36. It shall be open to the Development Authority to initiate proceedings in respect of the alleged unauthorized construction in the event it is found that the constructions raised by the petitioner, as alleged, cannot be compounded in terms of the aforesaid scheme. The writ petition is allowed subject to the observations made herein above. 37. The records, that were retained by this Court as produced by the Development Authority, have been returned back to the learned counsel for the Development Authority today. ——————