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2017 DIGILAW 320 (ORI)

Dayanidhi Mohapatra v. Collector-cum-District Magistrate Puri

2017-03-23

B.R.SARANGI

body2017
JUDGMENT : B.R. SARANGI, J. The petitioner was a licensee in respect of shop room No.35 in Ananda Bazar of Shri Jagannath Temple, Puri. He was carrying on his business of selling “Bhog” to the devotees of Lord Jagannath and earning his livelihood. The licence was valid for a period of 20 years. While he was carrying on his business, he was intimated on 28.05.2001 to make necessary arrangement for shifting of his cabin in view of the ensuing “Snana Purnima Festival”. But, subsequently, after the said festival was over, he was allowed to continue his business in the said cabin. Again on 10.08.2001, all the wooden cabin owners inside Ananda Bazar were called for by the authority for a discussion. Thereafter, on 13.02.2002 vide Annexure-8 the licence granted in favour of the petitioner was cancelled. Hence this application. 2. Mr. A.K. Mohapatra, learned counsel for the petitioner strenuously urged that the order dated 13.02.2002 in Annexure-8 canceling the licence of the petitioner is not a speaking one and as such, no reason has been assigned for such cancellation. More so, the same has been done without compliance of the principles of natural justice. Therefore, he seeks for quashing of the same. 3. Mr. S. Satpathy, learned counsel for opposite party no.2 contended that the petitioner himself was not utilizing shop room no.35 for carrying on his business. Rather he had sub-let the said shop room to some other person. Thereby, the petitioner has violated the conditions stipulated in the licence. Therefore, the authority has every right to cancel the licence and as such, no illegality or irregularity has been committed by the authority by cancelling the licence of the petitioner. 4. Heard learned counsel for the parties. Pleadings having been exchanged between the parties, perused the record and the matter is being disposed of at the stage of admission. 5. On perusal of the impugned order dated 13.02.2002 (Annexure-8), it appears that the licence granted in favour of the petitioner has been cancelled without assigning any reason. Cancellation of licence has to be made in compliance of the principle of natural justice after affording opportunity of hearing to the affected parties and by assigning reasons. 6. The apex Court in State of Orissa v. Dr. Cancellation of licence has to be made in compliance of the principle of natural justice after affording opportunity of hearing to the affected parties and by assigning reasons. 6. The apex Court in State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 held that if there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. Similar view has also been taken in A.K. Kraipak v. Union of India, AIR 1970 SC 150 , A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 , R.B. Shreeram Durga Prasad and Fatechand Nursing Das v. Settlement Commission (I.T. & W.T.), AIR 1989 SC 1038 . Thus, even though the said provision may not provide for notice to be given to the party affected before issuance of any order, but the same has to be read down in the said provision. In Smt. Menaka Gandhi v. Union of India, AIR 1978 SC 597 , the Constitution Bench of the apex Court held as follows:- “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.” Similar view has also been taken by this Court in Bijay Kumar Paikaray v. State of Odisha and others, 2017 (I) ILR –CUT-252 : 2017 (I) OLR-439. 7. “Nihil quod est contra rationem est licitum” means as follows: “nothing is permitted which is contrary to reason. It is the life of the law. Law is nothing but experience developed by reason and applied continually to further experience. What is inconsistent with and contrary to reason is not permitted in law and reason alone can make the laws obligatory and lasting.” Therefore, recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is pertinent to note that a decision is apt to be better if the reasons for it are set out in writing because the reasons are then more likely to have been properly thought out. It is pertinent to note that a decision is apt to be better if the reasons for it are set out in writing because the reasons are then more likely to have been properly thought out. It is vital for the purpose of showing a person that he is receiving justice. 8. In Re: Racal Communications Ltd. (1980)2 All ER 634 (HL), it has been held that the giving of reasons facilitates the detection of errors of law by the court. In Padfield v. Minister of Agriculture, Fisheries and Food (1968) 1 All E.R. 694, it has been held that a failure to give reasons may permit the Court to infer that the decision was reached by the reasons of an error in law. 9. In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 it has been held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice. Similar view has also been taken in Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915 . 10. In the present case, the order dated 13.02.2002 devoids of any reason and admittedly the same has been passed without complying with the principle of natural justice. But, in the counter affidavit, even though opposite party no.2 has assigned reasons and brought certain factual aspects with regard to justification of the order passed by the authority concerned, the same cannot be taken into consideration. Therefore, the reason assigned in the counter affidavit for passing the impugned order dated 13.02.2002 is also not tenable. 11. The apex Court in Gordhandas Bhanji, AIR 1952 SC 16 held as follows: “Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. 11. The apex Court in Gordhandas Bhanji, AIR 1952 SC 16 held as follows: “Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” 12. The Constitution Bench of the apex Court in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851 , the apex Court held : “…… when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.” Orders are not like old wine becoming better as they grow old. 13. Applying the above principles of law laid down by the apex Court to the present case, it is clear that the impugned order has been passed without any basis, and without following the established procedure of law. 14. Accordingly, for the reasons given hereinabove, this writ petition stands allowed. The order dated 13.02.2002 is quashed. No order to cost.