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2017 DIGILAW 779 (CAL)

Nandu K. Belani v. Kolkata Municipal Corporation

2017-09-14

HARISH TANDON

body2017
JUDGMENT : Harish Tandon, J. 1. At the very outset this Court must recapitulate the observations recorded by the Supreme Court in case of Rashmi Metaliks Limited & Anr. v. Kolkata Metropolitan Development Authority & Ors. reported in (2013) 10 SCC 95 deprecating the multiple citations of the decisions rendered by the Supreme Court as well as by the various High Courts reiterating the same principles of law with the following observations:- "7. This Court, and even more so the High Court as well as the subordinate courts have to face lengthy arguments in each case because of the practice of citing innumerable decisions on a particular point of law. The correct approach is to predicate arguments on the decision which holds the field, which in the present case is Tata Cellular v. Union of India, (1994) 6 SCC 651 rendered by a three-Judge Bench. The rule of precedence, which is an integral part of our jurisprudence, mandates that this exposition of law must be followed and applied even by coordinate or co-equal Benches and certainly by all smaller Benches and subordinate courts. We hasten to clarify that if a coordinate Bench considers the ratio decidendi of the previous Bench to be of doubtful efficacy, it must comply with the discipline of requesting the Hon'ble the Chief Justice to constitute a larger Bench. Furthermore, there are some instances of decisions even of a Single Judge, which having withstood the onslaughts of time have metamorphosed into high authority demanding reverence and adherence because of its vintage and following in contradistinction of the strength of the Bench. This is a significant characteristic of the doctrine of stare decisis. Tata Cellular [ (1994) 6 SCC 651 ] has been so ubiquitously followed, over decades, in almost every case concerning government tenders and contracts that it has attained heights which dissuade digression by even a larger Bench. The law of precedence and of stare decisis is predicated on the wisdom and salubrity of providing a firmly founded law, without which uncertainty and ambiguity would cause consternation in society. It garners legal predictability, which simply stated, is an essential. The law of precedence and of stare decisis is predicated on the wisdom and salubrity of providing a firmly founded law, without which uncertainty and ambiguity would cause consternation in society. It garners legal predictability, which simply stated, is an essential. Our research has revealed the existence of only one other three-Judge Bench decision which has dealt with this aspect of the law, namely, Siemens Public Communication Networks (P) Ltd. v. Union of India, (2008) 16 SCC 215 which is in actuality an anthology of all previous decisions including Tata Cellular, (1994) 6 SCC 651 . The sheer plethora of precedents makes it essential that this Court should abjure from discussing each and every decision which has dealt with a similar question of law. Failure to follow this discipline and regimen inexorably leads to prolixity in judgments which invariably is a consequence of lengthy arguments." 2. Plethora of judgments are cited for same proposition of law inviting this Court to deal with each of them to make the judgment lengthy and voluminous. 3. At the time of moving the motion, this Court observed that the Petitioner should exhaust the statutory remedy provided under the Kolkata Municipal Corporation Act, 1980 as all the points taken in the instant Writ Petition are amenable to be taken before the said forum, which is also otherwise competent to decide the same on merit. 4. Such observation embolden the learned Advocates appearing for the Petitioner to cite various judgments of the Apex Court wherein it is uniformly held that mere existence of an alternative remedy is not an absolute bar in entertaining the Writ Petition by the High Court. There cannot be any quarrel to the above settled proposition of law as the power enshrined under Article 226 of the Constitution of India is one of the fundamental facets under the Constitution founding the basic structure thereof. The catena of decisions rendered in this regard, laid down the principles within its contour that the party can approach the High Court inviting the invocation on powers enshrined under the said Article. One of the fundamental grounds of exercising such power is when the authority, be it administrative or quasi judicial, determined the rights of the parties without recording any reasons. 5. The legal maxim Audi Alteram Partem is one of such facets enshrined in the Constitution and its strict adherence in dispensation of justice. One of the fundamental grounds of exercising such power is when the authority, be it administrative or quasi judicial, determined the rights of the parties without recording any reasons. 5. The legal maxim Audi Alteram Partem is one of such facets enshrined in the Constitution and its strict adherence in dispensation of justice. The violation of Principles of Natural Justice entails all action of the authorities to be struck down as a person cannot be condemned without being heard. Though such right is recognized under the Constitution yet circumscribed by the operation of law. The aforesaid concept has seen a sea change since the advent of the Constitution and the concept of the prejudice has been attached to it. A person cannot simply get away with the order of the authority solely on the plea of violation of Natural Justice if the rules or the laws provide for its non-adherence. The person, who has not suffered any prejudice, does not deserve the action to be whittled down merely on non-observance of the Principles of Natural Justice. The authority, who decides the rights of the parties is duty bound to provide reasons for its decision so that the person would be able to understand grounds for rejection or the claim being allowed. It augments the fairness and transparency in the process of judgment opposed to any favouritism, nepotism or of like nature. The Constitutional scheme provides various forums for adjudication of the disputes in different tiers to eradicate any error or the mistakes. The forum of appeal is created to judge the decision of the lower authority in order to correct any error, mistake both on fact and law. 6. In a recent decision, the Apex Court in case of State of Haryana v. Northern Indian Glass Industries Limited reported in (2015) 15 SCC 588 held that the Principles of Natural Justice should not be used in an abstract manner nor an inviolable rule and can be moulded in case of fraud, malpractice and mala fides. It is, further indicated therein that if the decision of the authority signifies the application of mind and fairness in consideration merely because a reasonable opportunity of hearing was not afforded, does not entail the entire decision to be an outcome of error of law in the following words:- "19. It is, further indicated therein that if the decision of the authority signifies the application of mind and fairness in consideration merely because a reasonable opportunity of hearing was not afforded, does not entail the entire decision to be an outcome of error of law in the following words:- "19. In Board of Mining Examination and Chief Inspector of Mines v. Ramjee, (1977) 2 SCC 256 Krishna Iyer, J., one of the foremost apostles of human rights and natural justice, advocated that the Court "cannot look at law in the abstract or natural justice as a mere artefact. Nor can we fit into a rigid mould the concept of reasonable opportunity. If the authority which takes the final decision acts mechanically and without applying its own mind, the order may be bad, but if the decision-making body, after fair and independent consideration, reaches a conclusion which tallies with the recommendations of the subordinate authority which held the preliminary enquiry, there is no error in law". (SCC p. 262, para 14) 20. It would also be useful to recollect the observations of this Court in Union of India v. Jesus Sales Corpn., (1996) 4 SCC 69 wherein it has been enunciated that the dictate of natural justice viz. affording an opportunity to the person concerned to present his case would be met if the person concerned had the opportunity to present his case and that all points were taken into consideration. More recently, in Patel Engg. Ltd. v. Union of India, (2012) 11 SCC 257 : (2013) 1 SCC (Civ) 445 this Court has opined: (SCC pp. 268-69, para 38) "38. ... that there is no inviolable rule that a personal hearing of the affected party must precede every decision of the State." 21. In the instant case, the conduct of the respondent has not only been utterly unfair but, in fact, it smacks of fraud, malpractice and malfeasance. It cannot be justified as a simple error which may exonerate it of the allegations levelled against it by the appellant State. According to its own affidavit filed before the High Court, the respondent has executed 118 sale deeds in favour of various third parties, with several sales being in 2004-2005. It cannot be justified as a simple error which may exonerate it of the allegations levelled against it by the appellant State. According to its own affidavit filed before the High Court, the respondent has executed 118 sale deeds in favour of various third parties, with several sales being in 2004-2005. This is sought to be vindicated by the respondent on the ground that since the land was returned to it in 2004 after the quashing of the acquisition was set aside by this Court, it could have executed final sale deeds in respect of agreements to sell of 1991 post repossession of the land. Whether it had entered into agreements to sell with third parties in 1991 or accepted earnest money thereagainst is not an enquiry to be made here. It is also the case of the respondent that after the land remained in possession of the original landowners for twelve long years, it was beyond its control to establish the unit as was proposed and postulated at the time of acquisition and so in bona fide belief it sold the remaining land as well. The respondent cannot predicate that after paying the cost of the land to the appellant State and the enhanced compensation to the original landowners, it had become absolute owner of the land and consequently it could use the land in the manner it liked." 7. The Writ Court should seldom interfere with the order of the original authority when the remedy by way of an appeal is provided in the Statute unless the exceptions carved out in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. Reported in (1998) 8 SCC 1 is made out. The Apex Court in the said report held that it would be a sound exercise of discretion to refuse the interference under Article 226 of the Constitution of India if there is an existence of an alternative, efficacious remedy available to an aggrieved person unless there are good reasons therefore indicating that it would not operate as an absolute bar. The exhaustion of statutory remedy is a rule of policy, convenience and discretion rather than the Rule of Law. It is, therefore, a rule of discretion than of compulsion. 8. The exhaustion of statutory remedy is a rule of policy, convenience and discretion rather than the Rule of Law. It is, therefore, a rule of discretion than of compulsion. 8. The Writ Petition may be maintainable for enforcement of any of the fundamental rights or its violation or on violation of the Principles of Natural Justice or to challenge the vires of the Act or where the order or the proceeding is wholly without jurisdiction. The aforesaid exceptions are mere illustrative and not exhaustive. The Rules of Natural Justice is not an embodied rules as its obligation depends upon the particular statutory framework whereunder the jurisdiction has been conferred upon the authority. The concept of Natural Justice has been extended in the recent times imbibing within itself the adjudication by an authority to provide reasons. The Apex Court in case of S.N. Mukherjee v. Union of India reported in (1990) 4 SCC 594 have recognized the importance of providing reasons in dispensation of justice and to uphold the good administration. In Woolcombers of India Ltd. v. Woolcombers Workers Union and Another reported in (1974) 3 SCC 318 the Apex Court held that giving of reasons in support of conclusions by the judicial and quasi judicial authorities is essential for - "(i) to prevent unconscious, unfairness or arbitrariness in reaching the conclusions; (ii) to prevent the authority from any chances of unconscious infiltration or personal bias or unfairness in the conclusion; (iii) to uphold the well known principles that the justice should not only be done but should also appear to be done; and (iv) it would help and assist the Appellate Forum to find out the grounds for an ultimate decision." 9. In Paragraph 39 of the said report, the Apex Court has extended the horizons of the Natural Justice bringing within its bounds the importance of providing reasons by administrative, quasi judicial or judicial authorities in these words:- "39. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action". As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action". As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case." 10. The importance and significance of providing reasons in judicial or administrative dispensation where the rights of the parties are determined is summarized in paragraph 47 of the judgment rendered in case of Kranti Associates Private Limited and Another v. Masood Ahmed Khan and Others reported in (2010) 9 SCC 496 in the following:- "47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37].) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain, (1994) 19 EHRR 553 EHRR, at 562 para 29 and Anya v. University of Oxford, 2001 EWCA Civ 405 (CA), wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process"." 11. In the similar line the subsequent Bench of the Supreme Court in case of State of Uttaranchal & Anr. v. Sunil Kumar Vaish & Ors. reported in (2011) 8 SCC 670 held:- "17. Of late, we have come across several orders which would indicate that some of the Judges are averse to decide the disputes when they are complex or complicated, and would find out ways and means to pass on the burden to their brethren or remand the matters to the lower courts not for good reasons. Few Judges, for quick disposal, and for statistical purposes, get rid of the cases, driving the parties to move representations before some authority with a direction to that authority to decide the dispute, which the Judges should have done. Often, causes of action, which otherwise had attained finality, resurrect, giving fresh causes of action. Duty is cast on the Judges to give finality to the litigation so that the parties would know where they stand. 18. Judicial determination has to be seen as an outcome of a reasoned process of adjudication initiated and documented by a party based mainly on events which happened in the past. Duty is cast on the Judges to give finality to the litigation so that the parties would know where they stand. 18. Judicial determination has to be seen as an outcome of a reasoned process of adjudication initiated and documented by a party based mainly on events which happened in the past. Courts' clear reasoning and analysis are basic requirements in a judicial determination when parties demand it so that they can administer justice justly and correctly, in relation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided. 19. Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the Judge to respond to the parties' submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system." 12. It is, thus axiomatic to say that the High Court can interfere with the order of the administrative or quasi judicial authority if it is bereft of any reasons. It is one thing to say that the order is a non-speaking one having no reasons at all but it would be altogether different if the reasons are provided but the same does not appear to be correct one. In later case if there is a statutory remedy provided in the Statute, the party should be relegated to exercise such remedy and should not be encouraged to jump such forum and invite the High Court to determine the cause. 13. In later case if there is a statutory remedy provided in the Statute, the party should be relegated to exercise such remedy and should not be encouraged to jump such forum and invite the High Court to determine the cause. 13. In the backdrop of the above proposition of law, it is to be seen whether the order passed by the Hearing Officer is without any reason or contains some reasons, which may not ultimately be supported by the materials available on the records. The facts which emanate from the Writ Petition are that the Petitioner is the owner of the multistoried building and was served with several notices proposing to enhance the annual valuation to take effect from different quarters for the purpose of property tax. It is not in dispute that the Petitioner received those notices and appeared before the Hearing Officer on the date so fixed. It is an admitted fact that the Petitioner has sought for an adjournment on several dates and was represented on the date when the impugned orders were passed. According to the Petitioner, an adjournment was sought before the Hearing Officer to inspect the assessment list required to be prepared under sub-Section 1 of Section 184 of the said Act and its publication under sub-Section 2 thereof. In other words, the Petitioner wanted to inspect whether the general revaluation in any ward of the Corporation or part thereof has been entered into in an assessment list by the Municipal Commissioner and a public notice in this regard has been given, so that the Petitioner would be able to take the extract therefrom free of charge. 14. From the Adjournment Application annexed to the Writ Petition, this Court is unable to find any such averment having made therein for the purpose of adjournments. The aforesaid pleas are taken for the first time in the instant Writ Petition without having taken before the authority. The Corporation has specifically denied the above statement in the Affidavit-in-Opposition filed by them in the instant matter. Such disputed question of facts cannot be decided in a Writ Jurisdiction. 15. It is further submitted by the Petitioner that the reasons provided in the impugned order is completely alien and foreign to the grounds on which the proposal for enhancement of the annual valuation is founded. Such disputed question of facts cannot be decided in a Writ Jurisdiction. 15. It is further submitted by the Petitioner that the reasons provided in the impugned order is completely alien and foreign to the grounds on which the proposal for enhancement of the annual valuation is founded. It is again a matter to be decided by the Appellate Court whether the reasons recorded in the impugned order is the proper reason in the perspective of the materials available before the Hearing Officer. 16. According to the Corporation, the documents which were unearthed in course of the investigation, leading to the proposed enhancement of valuation was available before the Hearing Officer and the Petitioner could not dispute the existence thereof. The Petitioner retorted the aforesaid stand of the Corporation on the ground that there is no reflection in the order whether those documents were taken into consideration. 17. The remedy by way of an appeal against the order of the Hearing Officer is provided under Section 189 of the said Act and therefore, in my opinion, the Petitioner can take all such pleas before the Appellate Forum. By virtue of the powers conferred under Section 170 of the Kolkata Municipal Corporation Act, 1980 the Rules namely Kolkata Municipal Corporation (Taxation) Rules, 1987 has been framed. The said Rules contains the exhaustive provisions relating to the procedure, powers of the Appellate Authority and is therefore a complete Code by itself. The power is also conferred upon the Appellate Authority to take any additional evidence to be brought and therefore there is no difficulty on the part of the Petitioner to rely upon any materials, which he has not produced before the Hearing Officer. The Statutory Appellate Forum is vested with the power to determine the matter both on facts as well as law. 18. This Court, therefore, feels that it would not be proper to act as a Court of Appeal and decide the highly disputed facts. 19. This Court, therefore, finds that it is a fit case where the Petitioner should exhaust the statutory remedy of appeal provided under Section 189 of the Act and it is not such case where the Court should interfere with the order of the Hearing Officer in exercise of power under Article 226 of the Constitution of India. 20. The Writ Petition is thus dismissed. 21. 20. The Writ Petition is thus dismissed. 21. However, the dismissal of the Writ Petition shall not prevent the Petitioner from challenging the impugned orders before the Statutory Forum and if it is so challenged the Appellate Forum shall decide the same on merit without being influenced by the fact that this Court has refused to entertain the Writ Petition. 22. However, there shall be no order as to costs. 23. Upon appropriate application(s) being made, urgent Photostat certified copy of this judgment, may be given expeditiously subject to the usual terms and conditions. LATER: After the delivery of the judgment, Mr. Banerjee prays for stay of operation of this order. After considering the submission so advanced, this Court does not find that this is a fit case where such prayer can be allowed. Hence, such prayer for stay is refused.