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2016 DIGILAW 544 (ORI)

Upendranath Mohanty v. State of Odisha

2016-07-22

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : Vineet Saran, J. The dispute in the present petition relates to the demand of certain additional royalty for the lease, which was granted in favour of the petitioner for five years, i.e., from 1992-93 to 1996-97. 2. On 20/23.02.1997, the Tahasildar, Parlakhemundi issued an order directing the petitioner to deposit an amount of Rs.1,24,010/- on or before 15.03.1997. The petitioner thereafter filed an application for recalling the said order on the ground that the same has been passed without issuing notice to the petitioner. The same having been rejected by Tahasildar, vide order dated 19.03.1997, the petitioner filed an appeal before the Sub-Collector, Parlakhemundi, which has also been dismissed by order dated 24.01.1998. Hence, the present writ petition. 3. We have heard Mr. P.V.B. Rao, learned counsel for the petitioner as well as learned Addl. Government Advocate appearing for the State-opposite parties and perused the record. 4. From a perusal of the detailed order of the Sub-Collector while considering the appeal of the petitioner on merits, what is revealed that the demand had been raised by the Tahasildar on the basis of an audit report of the Board of Revenue. In the said order, it is however admitted that the appellant was regularly paying “surface rent and dead rent as per monthly return of collection of royalty”. 5. From the above, it is clear that alongwith the monthly return filed by the petitioner, he continued to pay the requisite rent amounts. At the fag end of the lease period, certain extra demand was raised for the entire five years period. From a perusal of both the orders which are impugned, i.e., the order of the Tahasildar, Parlakhemundi and the Sub-Collector, Parlakhemundi, it is clear that the petitioner was never given any opportunity before the demand for Rs.1,24,010/- was raised by the Tahasildar. In the order of the Sub-Collector, it has been stated that the written arguments were filed by the petitioner, which were forwarded to the Tahasildar for comments, and after considering the comments of the Tahasildar, the appellate order was passed. It is not stated that the comments of the Tahasildar or the report of the Board of Revenue were ever provided to the petitioner, so as to enable him to rebut the same. 6. It is not stated that the comments of the Tahasildar or the report of the Board of Revenue were ever provided to the petitioner, so as to enable him to rebut the same. 6. In Mahipal Singh Tomar v. State of Uttar Pradesh, 2013 (12) SCALE 304, the Apex Court held that in administrative law, the ‘rules of natural justice’ have traditionally been regarded as comprising ‘audi alteram partem’ and ‘nemo judex in causa sua’. The first of these rules requires the maker of a decision to give prior notice of the proposed decision to the persons affected by it and an opportunity to them to make representation. The second rule disqualifies a person from judging a cause if he has direct pecuniary or proprietary interest or might otherwise be biased. The first principle is of great importance because it embraces the rule of fair procedure or due process. Generally speaking, the notion of a fair hearing extends to the right to have notice of the other side’s case, the right to bring evidence and the right to argue. This has been used by the Courts for nullifying administrative actions. The premise on which the Courts extended their jurisdiction against the administrative action was that the duty to give every victim a fair hearing was as much a principle of good administration as of good legal procedure. 7. In Meneka Gandhi v. Union of India, AIR 1978 SC 597 , a seven-Judge Bench of the Apex Court held: “Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must always be: Does fairness in action demand that an opportunity to be heard should be given to the person affected?” 8. The aforementioned propositions of law laid down by the Apex Court have been reiterated in several decisions. Therefore, it no more remains as res integra. The inquiry must always be: Does fairness in action demand that an opportunity to be heard should be given to the person affected?” 8. The aforementioned propositions of law laid down by the Apex Court have been reiterated in several decisions. Therefore, it no more remains as res integra. Applying the principles laid down by the Apex Court, as discussed above, to the present context, it is apparent that the order of raising additional demand against the petitioner for a period of five years has been passed in complete and gross violation of the principles of natural justice, as no opportunity whatsoever was ever given to the petitioner to explain as to why such a demand was unreasonable. 9. In such view of the matter, the impugned orders are liable to be quashed. Accordingly, the writ petition stands allowed. The orders dated 20/23.02.1997 and 24.01.1998 passed by the Tahasildar, Parlakhemundi and the Sub-Collector, Parlakhemundi are quashed. The opposite parties shall be at liberty to pass fresh orders, in accordance with law, after giving notice to the petitioner and affording the petitioner adequate opportunity of hearing. No order as to costs.