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2013 DIGILAW 2873 (ALL)
SHRI SHIV MANDIR EVAM DHARAMSHALA TRUST v. STATE OF U. P.
2013-11-25
RAN VIJAI SINGH
body2013
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri R.P. Dubey, learned counsel for the petitioners, Dr. Y.K. Singh, learned counsel for respondent No. 3 and learned Standing Counsel. With the consent of learned counsel for the parties, the writ petition is taken up for final disposal. This writ petition has been filed for issuing a writ of certiorari quashing the order dated 27.9.2013 passed by the Deputy Registrar, Firms, Societies and Chits, Meerut by which the petitioner has been restrained from operating the account of the Trust. 2. The submission of learned counsel for the petitioner is that the order has only been passed on the legal advice of the District Government Counsel, who himself is appearing for the respondent in the suit pending before the Court below. 3. On being confronted as to whether the Deputy Registrar, Firms, Societies and Chits is the competent authority to pass the impugned order, Sri Dubey has not disputed the power, but what has been contended by him is that the power has been exercised arbitrarily without application of mind on the advice of the District Government Counsel. 4. Learned Standing Counsel could not show, from the perusal of the impugned order, that any application of mind has been made independently. Further, from the perusal of the order, it reflects that before passing the impugned order, no opportunity was given to the petitioners to defend the case. 5. After hearing learned counsel for the parties, I find that the Deputy Registrar, Firms, Societies and Chits has not applied his own mind and acted on the advice of the District Government Counsel, that too, without discussing that what was the advice and what was the reason, on which the District Government Counsel has advised to restrain the petitioner from operating the account of the Trust, while passing the impugned order. The order impugned on the face of record is cryptic order, which cannot be sustained in the eye of law in view of the law laid down by the Apex Court in in Sant Lal Gupta and others v. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336 , wherein the Apex Court has observed as under: “27.....The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity.
It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. [Vide: State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794 ; State of Rajasthan v. Sohan Lal and others, (2004) 5 SCC 573 ; Vishnu Dev Sharma v. State of Uttar Pradesh and others, (2008) 3 SCC 172 ; Steel Authority of India Ltd. v. Sales Tax Officer, Rourkela I Circle and others, (2008) 9 SCC 407 ; State of Uttaranchal and another v. Sunil Kumar Singh Negi, AIR 2008 SC 2026 ; U.P.S.R.T.C. v. Jagdish Prasad Gupta, AIR 2009 SC 2328 ; Ram Phal v. State of Haryana and others, (2009) 3 SCC 258 ; State of Himachal Pradesh v. Sada Ram and another, (2009) 4 SCC 422 ; and The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and others, AIR 2010 SC 1285 ).” 6. Otherwise also, the order impugned is vitiated on account of non-observance of principles of natural justice. Reference may be given in D.K.Yadav v. J.M.A. Industries Ltd., 1993 SCC 259 , wherein the Apex Court has held as under: “The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily effecting the rights of the concerned person. It is fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case.
It is fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 : (1978) 2 SCR 272 ; the Constitution Bench held that ‘Civil consequences’ covers infraction of not merely property or personal right but of civil liberties, material deprivation and non-pecuniary damages. In its comprehensive connotation every thing that affects a citizen in his civil life inflicts a civil consequence. In State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284 : AIR 1952 SC 75 : 1952 Cri LJ 510; per majority, a seven judge Bench held that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (1978) 2 SCR 621 , another Bench of seven judges held that the substantive and procedural laws and action taken under them will have to pass the test under article 14. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of natural justice.
They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of natural justice. The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil right or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi judicial inquiry is to arrive at a just decision and if a rule or natural justice is calculated to secure justice or to put in negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable.” 7.
Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable.” 7. The basic idea of observing the principles of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The aforesaid decisions still hold the field and have been followed in numerous cases, decided thereafter, reference may be given in the case of Canara Bank v. V.K. Awasthy, 2005 (6) SCC 321 ; Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board and others, (2007) 6 SCC 668 ; Devdutt v. Union of India and others, 2008 (3) ESC 433 (SC) and in Civil Appeal No. 4584 of 2013 (Arising out of SLP© No. 16388 of 2011 (Mahipal Singh Tomar v. State of Uttar Pradesh and others) decided on 9.5.2013. In view of the law laid down by the Apex Court it is clear that while passing an order leading to civil consequences reasonable opportunity has to be offered to the person concerned against whom action is taken. 8. Since the order impugned dated 27.9.2013 has been passed without any application of mind and is cryptic in nature and further, suffers from breach of principles of natural justice, therefore, it cannot be sustained in the eye of law. The writ petition succeeds and is allowed. The impugned order dated 27.9.2013 passed by the Deputy Registrar, Firms, Societies and Chits, Meerut is hereby quashed. However, dismissal of this writ petition will not preclude the respondent to proceed with the matter in accordance with law.[ 2013 DIGILAW 2873 (ALL) · digilaw.ai ]