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2016 DIGILAW 538 (GUJ)

Lifeline Foundation v. State of Gujarat

2016-03-04

R.M.CHHAYA

body2016
JUDGMENT : R.M. Chhaya, J. 1. Identical facts arise in these petitions and common order dated 29.9.2015 is under challenge in these petitions and therefore, all the petitions are heard together and are disposed of by this common judgment and order. Heard Mr. Jal Unwala, learned Counsel with Mr. Mohil P. Pathak, learned Counsel for the petitioner in SCA No. 17176/15 and Mr. Nirad Buch, learned Counsel for the petitioner in SCA No. 19816/15 and SCA No. 19917/15, Mr. Manan Mehta, learned AGP in SCA Nos. 17176/15 & 19917/15 and Ms. Vrunda Shah, learned AGP in SCA No. 19816/15 for the respondents. 2. By way of this petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 29.9.2015. 3. On perusal of the record of these petitions, it appears that the petitioner of SCA No. 17176/15 was granted recognition as provided under section 45(3) of the Factories Act, 1948 on 19.8.2014. Similarly, petitioner of SCA No. 19816/15 was granted recognition on 17.4.2010 and the petitioner of SCA No. 19917/15 was granted recognition on 11.12.2014. Abruptly, by the impugned order, the recognition is quashed. 4. Mr. Unwala as well as Mr. Buch, learned Counsel appearing for the concerned petitioners, have submitted that the impugned order is without affording any opportunity of being heard and without giving any show-cause notice and/or without assigning any reasons. The learned counsels appearing for the petitioners further submitted that the petitioners are non-profit earning institutions, have carried on activities as per recognition without any complaint. It was contended that on the aforesaid grounds and the grounds raised in the petition the same deserves to be allowed as prayed for. 5. In response to the notice issued by this Court, the respondents have filed their reply. Mr. Manan Mehta, learned AGP, has pointed out that as per the opinion of the Legal Department of the State of Gujarat, section 45(3) of the Factories Act does not provide for any opportunity of being heard and therefore, the impugned order is legal and proper and no interference is called for. 6. The learned Counsels appearing for the petitioners have predominantly raised the ground of non-hearing though other grounds are also pressed into service. On examining the aforesaid ground, it appears, with respect, that the action of the respondents is in clear breach of principles of natural justice. 6. The learned Counsels appearing for the petitioners have predominantly raised the ground of non-hearing though other grounds are also pressed into service. On examining the aforesaid ground, it appears, with respect, that the action of the respondents is in clear breach of principles of natural justice. The record of the petitions clearly indicates that the petitioners were given recognition and they have acted upon the same. In such circumstances, the hearing has to be provided and in opinion of this Court it has to be read into it. The order impugned does not indicate even remotely any circumstances which warrant such actions without observance of principles of natural justice. 7. The learned Counsel for the petitioners have rightly relied upon the judgment of the Apex Court in the case of Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati and others, (2015) 8 SCC 519 , as well as the judgment of the Division Bench of this Court in the case of Killol V. Shelat v. Municipal Corporation of City of Ahmedabad and another, 2009 (1) GLH 13. 8. It is rightly asserted by the learned Counsels for the petitioners that the administrative decision which has in fact affected the petitioners would require at least observance of principles of natural justice. Considering the ratio laid down by the Apex Court in the case of Dharampal Satyapal Ltd. (supra) and the facts and circumstances of this case, the authorities ought to have given an opportunity of being heard to the petitioners. 9. Similarly, the Division Bench of this Court in the case of Killol V. Shelat (supra) wherein the road lines were prescribed under the provisions of the BPMC Act by the Municipal Commissioner without giving an opportunity of being heard to the affected persons, have observed thus-- "28. It can thus be seen that outside of Clause (a) of sub-section (1) of section 210, persons likely to be affected by prescription of street line by the Commissioner have no right of hearing. In case of Lala Shri Bhagwan and another v. Ram Chand and another AIR 1965 SC 1767 , the Apex Court observed that power to determine the questions affecting the rights of citizens would impose the limitation that power should be exercised in conformity with the principles of natural justice. In case of Lala Shri Bhagwan and another v. Ram Chand and another AIR 1965 SC 1767 , the Apex Court observed that power to determine the questions affecting the rights of citizens would impose the limitation that power should be exercised in conformity with the principles of natural justice. In case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, 1990 (61) FLR 768 (SC) : (1988-90) SCLJ 1191, the Apex Court observed that it is now well settled that 'audi alteram partem' rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule. 29. It goes without saying that a citizen who is being deprived of his valuable right to property which though may not be fundamental right continuous to be a constitutional right and which, is by now recognized as a human right has at-least the minimum right of hearing before such a result is brought about. In a given case, he may be able to point out to the authority that proposed prescription of the street line is either arbitrary or unjust or wholly mala fide. Depriving the citizen of his right to property without even the minimum right of hearing cannot be countenanced. In case of P.T. Munichikkanna Reddy and others v. Revamma and others (2007) 6 SCC 59 , the Apex Court observed that the right of property is now considered to be not only a Constitutional or statutory right but also a human right. Similar observations were also made in case of Lachhman Dass v. Jagar Ram and others, (2007) 10 SCC 448 . 30. It is by now well settled that without affording opportunity of being heard, no order adverse to a person can be passed. Principles of natural justice require that before taking action against the citizen, he must have a right to be heard. Such requirement of principles of natural justice can be abridged or even totally shut out. However, same can be done only by specific statutory provisions or by necessary implications. Principles of natural justice require that before taking action against the citizen, he must have a right to be heard. Such requirement of principles of natural justice can be abridged or even totally shut out. However, same can be done only by specific statutory provisions or by necessary implications. In other words, when the statute is silent, principles of natural justice can be read into it and unless a statutory provision specifically or by necessary implications dispenses with the principles of natural justice, hearing must be given before passing any adverse orders. In case of State Govt. Houseless Harijan Employees' Association v. State of Karnataka and others, (2001) 1 SCC 610 , the Apex Court observed that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication. 31. Nothing in Clause (a) of sub-section (1) of section 210 would suggest that such a requirement of hearing was meant to be shut out or even curtailed by the legislation. By very nature of power that the Commissioner exercises under the said clause, requirement of natural justice are inherent and therefore, must be read into clause (a) of sub-section (1) of section 210 of the BPMC Act." 10. Considering the aforesaid ratio, therefore, when the rights are affected, the principles of natural justice have to be observed and therefore, the action of the respondents and the impugned order is in violation of the principles of natural justice and hence, the impugned order deserves to be quashed only on the said singular ground and it is not necessary to deal with other grounds raised in these petitions. Accordingly, the impugned order is hereby quashed and set aside qua these three petitioners. It would be open to the respondent authorities to issue appropriate show-cause notice and after giving an opportunity of being heard to the petitioners, the authorities may pass appropriate order/s. Petitions are allowed to the aforesaid extent. Rule made absolute accordingly in each of the petitions. No order as to costs.