Thakur Prasad v. Additional Commissioner, Devi Patan Mandal, Gondaand Others
2012-10-10
ANIL KUMAR
body2012
DigiLaw.ai
Anil Kumar, J.— Heard learned counsel for the parties and perused the record. Aggrieved by the order dated 29.01.2003 passed by Sub-Divisional Officer/opposite party no.2 under Section 143 of U.P. Z. A. Act, a revision bearing Revision No.668 has been filed under Section 333 of U.P. Z. A. Act, allowed by order dated 20.05.2008 (Annexure No.1) passed by opposite party no.1/Addl. Commissioner, Devi Patan Mandal, Gonda, District-Gonda. Aggrieved by the said order, a restoration application has been filed by the petitioner, dismissed by order dated 19.06.2008 (Annexure No.6) passed by the said authority. Aggrieved by the said fact, the present writ petition has been filed under Section 226 of the Constitution of India. Learned counsel for the petitioner while assailing the impugned orders submits that initially the order dated 20.9.2008 has been passed by opposite party no.1 without providing any opportunity of hearing to the petitioner and he was not a party, although he was a party when the proceedings started before the trial Court under Section 143 of U.P. Z. A. Act. In view of the abovesaid fact, application for recalling of the said order, dismissed by order dated 19.06.2008 (Annexure No.6) which is a non speaking order, accordingly, it is submitted by learned counsel for the petitioner that the impugned orders in question are illegal, arbitrary in nature and violative of Article 14 of the Constitution of India as well as principles of natural justice. On 16.1.2009, this Court passed an order, the relevant portion is quoted herein below:- "In the meantime, further proceedings in the court below in pursuance to the order dated 20.09.2008 shall remain stayed." Learned counsel for the respondent does not dispute the fact that the order dated 19.06.2008 (Annexure No.6) has been passed without hearing learned counsel for the parties. It is well settled that an order having civil consequences must contain reasons so as to enable the aggrieved party to challenge the reasoning of the authority. In the absence of reasons no foundation can be laid down by the petitioner and only argument remains is that the order is based upon non-application of mind. In my view if the reasoning of an order passed against the aggrieved person is not communicated and only a communication regarding decision has been communicated it cannot be assailed by the respondents that the grievance of a person has been decided.
In my view if the reasoning of an order passed against the aggrieved person is not communicated and only a communication regarding decision has been communicated it cannot be assailed by the respondents that the grievance of a person has been decided. In my opinion, it is no order in eye of law and it has no legs to stand. Hon'ble the Supreme Court in the case of East Coast Railway and another Vs. Mahadev Appa Rao and others, 2010 (7) SCC 678 , in para 23 held as under:- "Para No. 23 - Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hencelegally unsustainable." Hon'ble the Supreme Court in the case of U.P. State Road Transport Corporation Vs. Suresh Chand Shukla, (2010) 28 LCD 1206, held as under:- "In State of West Bengal Vs. Atul Krishna Shaw & Anr. AIR 1990 SC 2205 , this Court observed that "giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review." In Raj Kishore Jha Vs. State of Bihar & others ( AIR 2003 SC 4664 ), the Apex Court observed as under: "Before we part with the case, we feel it necessary to indicate that non-reasoned conclusions by appellate Courts are not appropriate, more so, when views of the lower Court are differed from. In case of concurrence, the need to again repeat reasons may not be there. It is not so in case of reversal. Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless". In State of Uttaranchal & Anr. Vs.
In case of concurrence, the need to again repeat reasons may not be there. It is not so in case of reversal. Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless". In State of Uttaranchal & Anr. Vs. Sunil Kumar Singh Negi AIR 2008 SC 2026 , Hon'ble the Apex Court held as under: "Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made". In fact, "reasons are the links between the material, the foundation for these erection and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusion reached". (vide: Krishna Swami Vs. Union of India & Ors. AIR 1993 SC 1407 ). Thus, while deciding the case, court is under an obligation to record reasons, however, brief, the same may be as it is a requirement of principles of natural justice. Non-observance of the said principle would vitiate the judicial order. In addition to the above said settled law that if any order has a civil consequence the same shall be passed after providing adequate opportunity of hearing to the parties concerned/a person who is aggrieved by the said order. However, if the same is passed ex parte behind the back of person who is aggrieved then the same will be arbitrary as well as in contravention to the principles of natural justice, cannot be sustained under law. For the foregoing reasons, the order dated 19.6.2008 is set aside and the matter is remanded to the opposite party no.1/Addl. Commissioner, Devi Patan Mandal, Gonda, District-Gonda to decide the application in question moved by the petitioner on merit after hearing learned counsel for the parties in accordance with law expeditiously preferably within a period of three months from the date of receiving a certified copy of this order. For the period of three months or till the decision is taken by the said authority, parties are directed to maintain status quo as exists today. With the above observations, the writ petition is allowed. _____________