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2016 DIGILAW 169 (ALL)

RAM SAWARI DEVI v. STATE OF U. P.

2016-01-13

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri A.K. Singh, learned counsel for the petitioners and learned standing counsel for the State-respondents. 2. Through this writ petition, prayer has been made to issue writ of certiorari quashing the order dated 16.10.2015 passed by Block Development Officer, Lar Block, District Deoria as well as order dated 22.8.2015 passed by Chief Development Officer, Deoria-respondent No. 2 by which recovery certificate has been issued against each of the petitioners for illegal allotment of houses under the Indra Housing Scheme. 3. Petitioner No. 1 happened to be Pradhan and remaining petitioners are beneficiaries. The reasons assigned in the impugned order are that the petitioners No. 2, 3 and 4 (beneficiaries) were not BPL card holders. The submission is that the petitioners No. 2, 3 and 4 are the members of BPL family. Learned counsel for the petitioners also contends that before issuing the recovery certificate, any kind of show-cause notice or opportunity was not offered to the petitioners. 4. Learned standing counsel appearing for the State-respondents submits that he may be granted time to seek instructions in this matter to verify as to whether opportunity was offered or not. 5. The Apex Court in the case of Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 : (1978) 2 SCR 272 ; has held that reasons cannot be supplied by filing counter-affidavit. From perusal of the impugned recovery certificates, which have been brought on record as annexure-4A, 4B and 4C and 6 to the writ petition, it transpires that neither any opportunity was offered to the petitioner nor their cases have been considered. In its comprehensive connotation every thing that affects a citizen in his civil life inflicts a civil consequence must be passed in conformity with the principles of natural justice. 6. In State of Orissa v. (Miss) Birapani Dei, this Court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice. 7. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice. 7. 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. 8. 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. 8. 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. 9. 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. 10. 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. 10. Since the order impugned leads to civil consequences, therefore the same could not be passed without affording any opportunity of hearing. Reference may be had to the judgments of the Apex Court in M/s Erusian Equipment and Chemicals Ltd. v. State of West Bengal and another, AIR 1975 SC 266 , Raghunath Thakur v. State of Bihar and others, AIR 1989 SC 620 , and M/s. Southern Painters (Supra), Gronsons Pharmaceuticals (P) Ltd. and another v. State of Uttar Pradesh and others, AIR 2001 SC 3707 , as well as Division Bench judgment of this Court in Smt Rajni Chauhan v. State of U.P. and others, 2010(8) ADJ 56 (DB) and Society for Education and Welfare Awareness (Sewa) thru it secretary v. Union of India thru Ministry of Human welfare (Manav Sansadhan) New Delhi and others, 2011 (6) ADJ 787 . 11. Learned standing counsel has not been able to demonstrate from the perusal of recovery certificate that anywhere the version of the petitioners has been considered. It is settled law that any order which leads to civil consequences must be passed in conformity with the principles of natural justice. Since here the impugned order has been passed in derogation of principle of natural justice, therefore, impugned orders/recovery certificates cannot be sustained in the eye of law. 12. In the result, writ petition succeeds and is allowed and the impugned order dated 22.8.2015 (annexure-4A, 4B, 4C) and the recovery certificate dated 16.10.2015 (Annexure 6) are hereby quashed. However, allowing the writ petition will not preclude the respondents to proceed in accordance with law.