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2019 DIGILAW 802 (JHR)

Bhola Singh v. State of Jharkhand

2019-04-03

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : 1. This writ petition is under Article 226 of the Constitution of India, wherein, the order dated 29.12.2018, passed by the Executive Officer, District Board (Zila Parishad), Chatra, whereby and where under, the allotment of the shop made in favour of the petitioner has been cancelled with a direction upon him to get the premises vacated within a period of one week, falling which appropriate legal action will be taken. 2. It is the case of the petitioner, as per the pleading made in the writ petition that in terms of a bilateral agreement dated 02.02.2017 (Annexure-1), the shop in question has been allotted for a period of five years with a condition stipulated in terms of the contract that the renewal of the Agreement would mandatorily to be made after lapse of the period of 11 months and for that the shop holder will have to make an application by physically appearing in the office hour of the respondent-office in the 11th month. However, he has made himself available before the office as per the condition stipulated in Clause No. 1 of the Terms of the contract (Annexure-1) by an application for renewal on 25.10.2018 (Annexure-3), but without considering the same, the allotment of the petitioner has been cancelled with a direction to vacate the shop within a week. 3. Learned counsel for the petitioner has raised the issue of nonobservance of the principles of natural justice, since, according to him before passing an order of cancellation of allotment, it was incumbent upon the authority to issue show cause notice, but that, having not been done, therefore, the impugned order is in violation of the principles of natural justice, hence, not sustainable, accordingly, the same may be quashed. 4. Mr. 4. Mr. Radha Krishna Gupta, learned A.C. to G.P. II appearing for the Respondent-State has submitted on the strength of the counter affidavit that there is no error in taking such decision by the Executive Officer, District Board (Zila Parishad), Chatra, since the petitioner being defaulter in even making payment of the rent as per the decision taken in the Agreement, which has been agreed upon by the petitioner, not only that, he has also not made application for renewal of the Agreement in the 11th month as per the provision made under the Condition No. 1 of the Contract, as contained under Annexure-1, therefore, the force of the Agreement having lost and hence, the consequence has been arrived at by cancellation of the allotment of the shop made in favour of the petitioner. So far as the contention of the petitioner that there is violation of the principles of natural justice, it has been replied by him that the question of principle of natural justice would only arise in case, it will lead to the civil consequence and if any legal right accrued upon the party, but, herein, in the instant case, since the petitioner has not made available himself in the 11th month as per the condition stipulated in Condition No. 1 of the Contract, under Annexure-1, therefore, the terms of the Agreement has lost its force and hence, the right created in favour of the petitioner by virtue of the contract, since lost its force, as such, there is no question of issuance of any show cause notice in favour of the petitioner and therefore, what has been contended by the petitioner that there is violation of the principle of natural justice, the order is held to be not sustainable, is having no force. 5. 5. Having heard the learned counsel for the parties and after appreciating the rival submissions, the undisputed facts that in pursuance to the bilateral Agreement arrived at in between the petitioner as well as the competent authority of the respondents on 02.02.2017, basing upon which the shop in question has been allotted in favour of the petitioner, containing therein, certain conditions, one of which has been enshrined at Condition No. 1, which speaks that the terms of the contract would be for a period of 5 years and on each 11th month of the period of 5 years, the petitioner would have to appear before the competent authority for renewal of the contract. 6. It has been gathered from the pleadings made in the writ petition as also the argument advanced on behalf of the parties that the petitioner for the first time has made an application for renewal of the Agreement on 25.10.2018 i.e. by way of Annexure-3, even accepting it to be true, the same is after the expiry of the period of 11th month of the period of 5 years i.e. after 01.01.2018 and therefore, the said application will be said to be beyond the scope of consideration for renewal of the contract as per the condition stipulated under Condition No. 1 of the Contract, as is under Annexure-1. 7. It is evident from the impugned decision (Annexure-4) that the respondents authorities have taken the aforesaid ground of non-renewal of the Agreement in terms of the condition no. 1 and therefore, in consequence thereof, the allotment has been cancelled. 8. So far as the legal question raised by the petitioner pertaining to violation of the principles of natural justice, it is not in dispute that the cardinal principle of observance of natural justice is to be followed, but following the principles of natural justice there is no strait jacket formula, rather, it is to be decided on the basis of the facts and circumstances involving in each case. 9. 9. It is also not in dispute that when question would be of civil consequences, the opportunity of natural justice is to be observed, but, before issuing show cause notice for providing the opportunity of hearing, this Court has examined the issue as to whether the petitioner has got any legal right to get the said shop and on examination, it has been gathered by this Court that after 01.01.2018, the force of the Agreement, as under Annexure-1 executed on 02.02.2017, in pursuance to the Condition No. 1, has lost and therefore, after 02.02.2018, it will be said to be cancellation of the Agreement and therefore, the allotment since depends upon the condition of the aforesaid Agreement, the consequence would be that the allotment could be said to be cancelled and once, it will be deemed to be cancelled in pursuance to the condition no. 1, the petitioner will be said to be having no right to possess the possession of the said shop and if he has got no legal right, there is no question of observance of the principles of natural justice. 10. Further, principles of natural justice is to be observed, when there is factual dispute, but, here, it is the admitted case of the petitioner that he has not got the contract renewed during the subsistence period of the contract and therefore, there is violation of the terms and conditions of the contract, as contained in Condition No. 1, which is binding upon the petitioner vis-à-vis the respondents and therefore, if the matter would be remitted before the authority for observing the principles of natural justice, the same would lead to the only formality and futile exercise, since the factual aspect pertains to non-renewal of the contract in terms of the condition no. 1 of the Agreement as contained in Annexure-1 is not in dispute, this aspect of matter has been dealt with by the Hon’ble Apex Court in the judgments render in the case of Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P. & others, reported in (2004) 4 SCC 281 wherein Hon'ble the Apex Court has held at paragraph- 64 which is being quoted herein below: “64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India.” 11. In the case of Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati and others, reported in (2015) 8 SCC 519 wherein their Lordships have held at paragraph-39 which is being quoted herein below: “39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason-perhaps because the evidence against the individual is thought to be utterly compelling- it is felt that a fair hearing “would make no difference”- meaning that a hearing would not change the ultimate conclusion reached by the decision-maker.” 12. In view thereof and in the entirety of the facts and circumstances, this Court is of the considered view that the petitioner has failed to make out a case for interference under Article 226 of the Constitution of India for issuance of writ of certiorari. Hence, the writ petition fails and it is dismissed.