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2018 DIGILAW 1432 (ALL)

Malwati v. State of U. P.

2018-06-19

MAHESH CHANDRA TRIPATHI, NEERAJ TIWARI

body2018
JUDGMENT & ORDER : 1. Heard Sri. Vrindavan Mishra, learned counsel for the petitioner and learned Addl. Chief Standing Counsel appearing for the State-respondents. Sri. Pranjal Mehrotra has accepted notice on behalf of the National Highway Authority of India. 2. The petitioner is before this Court assailing the impugned recovery notice dated 22.5.2018 issued by the Additional District Magistrate (Land Acquisition, Joint Organization), Ghaziabad whereby, direction has been issued to the petitioner to deposit a sum of Rs. 19,32,303/- which is claimed to be additional compensation paid to the petitioner due to wrong measurement of land by the respondent-authorities. 3. Sri. Vrindavan Mishra, learned counsel for the petitioner, in support of his submission states that at no point of time the authority has made any enquiry in the presence of the petitioner and only on the basis of ex parte enquiry, the present notice has been issued and as such it is submitted that entire action of the respondent is in breach of principles of natural of justice. 4. On the other hand, learned Additional Chief Standing Counsel has opposed the writ petition on the ground that once an enquiry was made in the matter and it is found therein that certain excess amount has been paid to the petitioner, in such a situation rightly the notice has been issued asking the petitioner to deposit the amount in question. 5. In this backdrop, the Court has proceeded to peruse the record in question and finds that while issuing the notice, much reliance has been placed on report dated 4.9.2017 and 28.12.2017. This is admitted situation that at no point of time while carrying out enquiry and submitting report dated 4.9.2017 as well as 28.12.2017, petitioner has been extended an opportunity of hearing in the matter and the entire report has been submitted ex parte. 6. Hon'ble the Supreme Court in the case of Union of India v. Mohd. Ramzan Khan, (1991) 1 SCC 588 : ( AIR 1991 SC 471 ), at page 596 has quoted Prof. 6. Hon'ble the Supreme Court in the case of Union of India v. Mohd. Ramzan Khan, (1991) 1 SCC 588 : ( AIR 1991 SC 471 ), at page 596 has quoted Prof. Wade has pointed out: "The concept of natural justice has existed for many centuries and it has crystallized into two rules: that no man should be Judge in his own cause; and that no man should suffer without first being given a fair hearing....They (the courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair administrative procedure, to be obeyed by authorities of all kinds. They have done this once again, by assuming that Parliament always in stands powers to be exercised fairly". 7. Justice Krishna Iyer in Mohinder Singh Gill v. The Chief Election Commissioner, (1978) AIR SC 851 has traced the root of natural justice in Kautiyla's Arthasastra. He opined as under: "the rule of law has had the stamp of natural justice which makes it social justice". 8. Hon'ble the Supreme Court in A.K. Kraipak v. Union of India, (1969) 2 SCC 262 : ( AIR 1970 SC 150 ) held an unjust decision in an administrative enquiry may have more fair reaching effect that a decision in quasi judicial enquiry. The purpose of the rules of natural justice is to prevent miscarriage of justice. The Court has referred the classic case of State of Orissa v. Dr. Binapani Dei, (1967) AIR SC 1269; Supreme Court in Binapani Case observed that if "there is power, duty to act judicially is implicit in the exercise of such power". 9. In Swadeshi Cotton Mills v. Union of India, (1981) AIR SC 818, Justice R.S. Sarkaria held as under: "Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. But there are two fundamental maxims of natural justice vis. (i) audi alteram partem, and (ii) nemo judex in re sua. The audi alterm partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the alter of administrative convenience or celerity. But there are two fundamental maxims of natural justice vis. (i) audi alteram partem, and (ii) nemo judex in re sua. The audi alterm partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the alter of administrative convenience or celerity. The general principles as distinguished from an absolute rule of uniform application seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full view or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing, shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise." 10. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise." 10. Recently Hon'ble the Supreme Court in the case of Automotive Tyre Manufacturers Association v. Designated Authority, (2011) 2 SCC 258 : (2011 AIR SCW 818) held about the natural justice in following terms: "It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi judicial. It is equally trite that the concept of natural justice can neither be put in a straitjacket nor is it a general rule of universal application." 11. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fairplay 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, I am 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. No doubt, the extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. The rules of natural justice are not embodied rules. No doubt, 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. 12. In the facts and circumstances of this case, this Court is of the considered opinion that the aforesaid impugned recovery is unsustainable, accordingly, the notice dated 22.5.2018 is set aside and the matter is remitted to the District Magistrate, Hapur to proceed in the matter strictly in accordance with law but definitely after giving an opportunity to the petitioner as well as National Highway Authority. The entire proceeding should be finalized within three months from the production of certified copy of this order. 13. The writ petition is allowed accordingly.