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2020 DIGILAW 425 (MP)

Estate Officer v. Dr. Ashwini

2020-03-17

S.C.SHARMA, SHAILENDRA SHUKLA

body2020
JUDGMENT S.C. Sharma, J. - The present Writ Appeal is arising out the order dated 19.09.2016 passed by the learned Single Judge in W.P. No.756/2006 (Dr. Ashwini S/o Shri Shreeram Jaiswal v/s Estate Officer, Mhow Circle). 2. The facts of the case reveal that the respondent in the present writ appeal, Dr. Ashwini Jaiswal, has preferred a writ petition before the learned Single Judge being aggrieved by the order dated 31.01.2005 passed by the Estate Officer under Section 5-B(1) of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred as the Act of 1971) requiring the petitioner therein to remove/demolish the unauthorized construction . The writ petition was also against the order dated 27.01.2006 by which, the order passed by the Estate Officer has confirmed by the appellate authority. 3. The facts, as stated the writ petition, further reveal that the respondent is resident of Bungalow No.70 situated at Mall Road, Mhow and the bungalow was under the old grant Class B-3 land managed by the Defence Estate Officer. It was given under occupancy right to one Jabarchand Moolchand about 100 years back. The record further reveals that after the death of original owner, Keshrimal Shah succeeded him and one Prakashchandra Shah was adopted by him. 4. A notice 02.12.1986 was given by the Government of India for resumption of old grant and Prakashchandra filed a suit for declaration and for grant of injunction against Union of India and others. The civil suit was registered as COS No.369A/91 (New No.2-A/2003). The suit was dismissed on 26.07.2005 against which, an appeal was preferred i.e. First Appeal No. 4/05 and the appellate Court has remanded the matter back to the trial Court. Against the remand order, the Union of India has preferred a Miscellaneous Appeal and the same is pending for consideration before this Court and further proceedings before the trial Court have been stayed. 5. On 13.05.2004, a sale deed was executed by Prakashchandra Shah in favour of the petitioner and on 08.07.2004, Prakashchandra Shah applied to the Executive Officer, Cantonment Board for carrying out repair work in the respect of the house in question. On 23.07.2004 a notice under Section 5-B(2) of the Act of 1971 issued to the petitioner alleging unauthorized construction and requiring him to demolish it. The petitioner was also directed to stop construction under Section 5-B(2) of the Act of 1971. On 23.07.2004 a notice under Section 5-B(2) of the Act of 1971 issued to the petitioner alleging unauthorized construction and requiring him to demolish it. The petitioner was also directed to stop construction under Section 5-B(2) of the Act of 1971. The petitioner, thereafter, filed a reply on 09.11.2004 and the impugned order was passed on 31.05.2005 by the Estate Officer under the provisions of the Act of 1971. The petitioner preferred an appeal against the said order and it was dismissed by an order dated 27.01.2006. 6. The petitioner also contended in the writ petition that the another order was issued on 11.02.2004 under Section 185 of the Cantonment Act, 1924 directing demolition of the construction of the suit house by the Cantonment Board against which, an appeal under Section 276 of the Cantonment Act, 1924 was preferred before the General Officer, Commanding-in-Chief, Central Command, Lucknow and the same is pending. 7. Before the learned Single Judge, a reply was filed by the respondents and it was stated by the respondents that the petitioner has raised unauthorized construction, and therefore, the order has rightly been passed under the Act of 1971 requiring the petitioner to demolish the construction. It was also stated in the reply that no permission of any kind was granted at any point of time for carrying out the repair/construction by the Cantonment Board and the petitioner with open eyes has purchased the disputed land and the civil suit is pending. 8. It was contended by the petitioner before the learned Single Judge that the Defence Estate Officer was the complainant in the matter and he himself has passed the impugned order as Estate Officer under the Act of 1971, and therefore, the impugned order is not sustainable as no one can be a judge in his own cause. 9. The learned Single Judge has arrived at a conclusion that the Estate Officer has passed the impugned order dated 31.01.2005 in violation of principles of natural justice and fair play. He has violated the principle that no one should be the judge on his own cause and in those circumstances, the writ petition has been allowed. 10. 9. The learned Single Judge has arrived at a conclusion that the Estate Officer has passed the impugned order dated 31.01.2005 in violation of principles of natural justice and fair play. He has violated the principle that no one should be the judge on his own cause and in those circumstances, the writ petition has been allowed. 10. Paragraphs 6 to 11 of the order passed by the learned Single Judge reads as under:- '6/ Having heard the learned counsel for the parties and on perusal of the record, it is noticed that petitioner in paragraph 6.2 of the writ petition has raised the specific ground that the Estate Officer under Public Premises Act was simultaneously holding post of DEO Mhow and he himself was the complainant and has himself decided the said complaint by passing the impugned order as Estate Officer under Public Premises Act. The respondent's reply to this ground is vague and there is no specific denial of petitioner's plea. In paragraph 3 of rejoinder, the said plea has been reiterated but there is no denial to the said plea nor during course of arguments learned counsel for respondent had disputed the fact that Defence Estate Officer on whose complaint the proceedings were initiated himself was acting as Estate Officer under Public Premises Act. Hence it is clear that defence Estate Officer had made a complaint about the unauthorized construction by petitioner and on the said complaint proceedings were initiated by Defence Estate Officer himself acting as Estate Officer under Public Premises Act and during course of the proceedings, the Defence Estate Officer has presented another complaint about enlarge area of unauthorized construction before himself as the Estate Officer under the Public Premises Act and had passed the impugned order accepting his own complaint. 7. Since the Estate Officer is statutorily appointed under Section 3 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 therefore, merely because an officer of department does the adjudication as Estate Officer, it is not enough to conclude that he is the judge in his own cause, unless it is shown that such an officer has personal interest or has himself already done some act or taken a decision in the matter concerned. To successfully challenge the order of Estate Officer on this ground, it is required to be established that Estate Officer has a personal bias or connection or a personal interest or has personally acted in the matter concerned or has already taken a decision one way or the other which he may be interested in supporting. Hence the allegation of petitioner that Estate Officer was judge in his own cause is to be examined on the touch stone of the above parameters. 8. Supreme court in the matter of Delhi Financial Corporation and another Vs. Rajiv Anand and others reported in (2004) 11 SCC 625 while examining the similar issue in respect of appointment of Managing Director or any other official of financial corporation as specified authority under Section 32-G of State Financial Corporation Act, 1951 has held as under:- 9. Faced with this authority, it was submitted that the observations made by the Constitution Bench are per incuriam inasmuch as this authority has not taken note of the Judgment in Gullapalli Nageswara Rao's case (supra). We are unable to accept this submission. It is to be seen that there is a big difference in the facts of the two cases. The doctrine that 'no man can be a judge in his own cause' can be applied only to cases where the person concerned has a personal interest or has himself already done some act or taken a decision in the matter concerned. Merely because an officer of a Corporation is named to be the authority, does not by itself bring into the operation the doctrine 'no man can be a judge in his own cause'. Of course in individual cases bias may be shown against a particular officer but in the absence of any proof of personal bias or connection merely because officers of a particular Corporation is named as the authority does not mean that those officers would be biased. As has been held by the Constitution Bench a Managing Director is a high ranking officer. He is not personally interested in the transaction. There is no question of any bias or conflict between his interest and his duty. In Gullapalli Nageswar Rao's case (supra) the Secretary who had framed the scheme then proceeded to hear the objections and advise the Chief Minister. He is not personally interested in the transaction. There is no question of any bias or conflict between his interest and his duty. In Gullapalli Nageswar Rao's case (supra) the Secretary who had framed the scheme then proceeded to hear the objections and advise the Chief Minister. It is because of the personal involvement of the Secretary that the majority took the view. Even then two Judges held that it did not follow that he was an improper person to hear the objections. 10. At this stage it must also be mentioned that the control of the State Financial Corporation Act, by virtue of Section 9, vests in a Board of Directors. Of course the Board of Directors would take the assistance of the Executive Committee and the Managing Director. But the control remains that of the Board of Directors and therefore there is no question of presuming that there was any conflict of duty or that the Managing Director would not act fairly. 11. Reliance was also placed upon the decision of another Constitution Bench of this Court in the case of A.K. Kra ipak and Ors. v. Union of India and Ors. . In this case the Acting Inspector General of Forest of Jammu & Kashmir State was himself a candidate for selection to the Indian Forest Service. Even though he was a candidate he became a Member of the Selection Board constituted under Regulation 5 for preparing a list of officers of State Forest Service. In the list which was prepared his name was shown as No. 1. It was pointed out that the Acting Inspector General of Forest did not sit in the Selection Board at the time when his name was considered by the Selection Board. This Court held even though he may not have sat in the Selection Board at the time his name was considered but he did participate when the names of his rivals were being considered. It was held that he was bound to have influenced the other members whilst the names of his rivals were being considered. Here also, the facts were completely different. It was shown that the Acting Inspector General had a personal interest in seeing that he got selected. 12. Reliance was also placed upon the case of Krishna Bus Service Pv t. Ltd. v. State of Haryana and Ors. . Here also, the facts were completely different. It was shown that the Acting Inspector General had a personal interest in seeing that he got selected. 12. Reliance was also placed upon the case of Krishna Bus Service Pv t. Ltd. v. State of Haryana and Ors. . In this case the General Manager Haryana Roadways was given powers under the Punjab Motor Vehicles Act and the Rules framed thereunder which could be exercisable by a Deputy Superintendent of Police. The Court noted that the General Manager of the Haryana Roadways was personally responsible for proper management of the activities of the Haryana Roadways. The Court noted that prosperity and profitability of Haryana Roadways would depend upon competition from private operators. The Court noted that the powers given to the General Manager would cast a duty to ensure compliance of the provisions of the Act and that this would include checking, inspection, search and seizure of offending Motor vehicles. It was held that even vehicles belonging to the Haryana Roadways may have to be checked, inspected, searched and/or seized. It was noted that he would have to take steps to prosecute the officers and this might include officers of his own department and may even include himself. On these facts it was held that, with the duties entrusted to him as a General Manager, he could not be expected to discharge the above mentioned functions fairly and reasonably as an unobstructed operation of motor vehicles by private owners would affect the earnings of the Haryana Roadways. It was held that there was every likelihood that he would be over zealous in stopping, searching and/or seizing motor vehicles belonging to others and at the same time be lenient to the vehicles belonging to the Haryana Roadways. It was held that if he was too lenient in inspecting vehicles, the interests of the travelling public at large would be in peril. It was held that either way there was a conflict between his duty on the one hand and his interest on the other. 13. In the case of Accountant and Secretarial Services Pvt. Ltd. and Anr. v. Union of India and Ors. the appointment of an officer of the Respondent Bank as an Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, was challenged on the ground that it was violative of Article 14 of the Constitution of India. 13. In the case of Accountant and Secretarial Services Pvt. Ltd. and Anr. v. Union of India and Ors. the appointment of an officer of the Respondent Bank as an Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, was challenged on the ground that it was violative of Article 14 of the Constitution of India. This Court held that in the very nature of things, only an officer or an appointee of the Government, statutory authority or Corporation can be thought of for implementing the provisions of the Act. This Court held that personal bias cannot be attributed to such officers either in favour of the bank or against any occupant who is being proceeded against, merely because he happens to be an officer. 14. Thus, the authorities disclose that mere appointment of an officer of the Corporation does not by itself bring into play the doctrine that 'no man can be a judge in his own cause'. For that doctrine to come into play it must be shown that the concerned officer has a personal bias or a personal interest or has personally acted in the concerned matter and/or has already taken a decision one way or the other which may be interested in supporting. This being the law it will have to be held that the decision of the Delhi High Court is erroneous and cannot be sustained and the view taken by the Punjab and Haryana High Court is correct. It will therefore have to be held that Managing Director of a Financial Corporation can be appointed as an Authority under Section 32G of the Act. 9. Following the aforesaid judgment in the matter of Crawford Bayley & Co. and others Vs. Union of India and others reported in (2006) 6 SCC 25 in a case where the issue of applicability of principle that 'no man can be a judge of his own cause' arose in reference to the statutory authority appointed as Estate Officer under Public Premises (Eviction of Unauthorized Occupants) Act, 1971, Supreme court has held as under:- '18. In this connection, a reference was made in Delhi Financial Corpn Vs. Rajiv Anand with regard to personal bias i.e. an officer of the statutory authority has been appointed as an Estate Officer, therefore, they will cary their persona bias. In this connection, a reference was made in Delhi Financial Corpn Vs. Rajiv Anand with regard to personal bias i.e. an officer of the statutory authority has been appointed as an Estate Officer, therefore, they will cary their persona bias. However, this court in the aforesaid case held that the doctrine 'no man can be a judge in his own cause' can be applied only to cases where the person concerned has a personal interest or has himself already done some act or taken a decision in the matter concerned. Merely because an officer of a corporation is named to be the authority, does not by itself bring into operation the doctrine, 'no man can be a judge in his own cause'. For that doctrine to come into play it must be shown that the officer concerned has a personal bias or connection or a personal interest or has personally acted in the matter concerned and/or has already taken a decision one way or the other which he may be interested in supporting. 19. In view of the aforesaid observation made by this court that 'no man can be a judge in his own cause' certain parameters have to be observed i.e. a personal bias of the person concerned or personal interest or (sic) person acted in the matter concerned and has already taken a decision which he may be interested in supporting the same. These parameters have to be observed before coming to the conclusion that 'no man can be a judge in his own cause'. This is a matter of factual inquiry. Be that as it may. Mr. Gopal Subramanium, learned Additional Solicitor General of India with his usual fairness has submitted that the officer who has been appointed as an Estate Officer though alleged to have been associated as an officer dealing with the eviction matters will not be presiding over as an Estate Officer. Therefore, in view of this submission made by Mr. Subramanium we do not think that the matter is required to be prosecuted further." 10/ By examining the present case on touch stone of the above parameters it is found that the Defence Estate Officer has the personal interest in the matter since he himself was the complainant. Therefore, in view of this submission made by Mr. Subramanium we do not think that the matter is required to be prosecuted further." 10/ By examining the present case on touch stone of the above parameters it is found that the Defence Estate Officer has the personal interest in the matter since he himself was the complainant. As a complainant he was prosecuting the complaint before the Estate Officer under Public Premises Act and as the Estate Officer under Public Premises Act he was deciding his own cause. The Defence Estate Officer was producing the material in the proceedings to establish his complaint and on the basis of said material he himself has decided the complaint as Estate Officer under Public Premises Act. Hence it can safely be concluded that he has personal interest as complainant in the matter and he was interested in supporting the allegation made in the complaint, therefore, the Estate Officer was the judge in his own cause. 11. The impugned order dated 31/1/2005 has been passed by the Estate Officer in violation of the principle that 'no-one should be judge in his own cause', therefore, the same cannot be sustained and is hereby set aside. Consequently the appellate order dated 27/1/06 is also set aside. However with liberty to the respondent to initiate fresh proceedings in accordance with law." 11. This Court has carefully gone through the order passed by the learned Single Judge. Undisputedly, the Estate Officer under the the Act of 1971 is the Defence Estate Officer. There is no dispute in respect of the notification notifying the Defence Estate Officer under the Cantonment Act as the Estate Officer under the Act of 1971 and he has passed an order dated 31.01.2005 under the Act of 1971 and an appeal was preferred before the First Additional District Judge i.e. Appeal No.3/05 and the same has been dismissed on 27.01.2006. The writ petition was preferred in the year 2006 and it has been decided only on 19.09.2016. There was an interim order continuing in the matter. The learned Single Judge has not dealt with the issue of 'Doctrine of Necessity'. 12. The writ petition was preferred in the year 2006 and it has been decided only on 19.09.2016. There was an interim order continuing in the matter. The learned Single Judge has not dealt with the issue of 'Doctrine of Necessity'. 12. The Hon'ble Supreme Court in catena of judgment has held that in a situation where it is necessary to take action and there is no other person who can act as an adjudicator under the statute, then principle of natural justice would not be a hurdle to the justice. The Hon'ble Supreme Court in the case of Tata Cellular v/s Union of India reported in (1994) 6 SCC 651 has held as under:- This Court in Charan Lal Sahu v. Union of India16 dealt with this doctrine which is stated as follows : (SCC p. 694, para 105) "The question whether there is scope for the Union of India being responsible or liable as joint tort-feasor is a difficult and different question. But even assuming that it was possible that the Central Government might be liable in a case of this nature, the learned Attorney General was right in contending that it was only proper that the Central Government should be able and authorised to represent the victims. In such a situation, there will be no scope of the violation of the principles of natural justice. The doctrine of necessity would be applicable in a situation of this nature. The doctrine has been elaborated, in Halsbury's Laws of England, 4th Edn., p. 89, paragraph 73, where it was reiterated that even if all the members of the Tribunal competent to determine a matter were subject to disqualification, they might be authorised and obliged to hear that matter by virtue of the operation of the common law doctrine of necessity. An adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide may in certain circumstances be required to adjudicate if there is no other person who is competent or authorised to be adjudicator or if a quorum cannot be formed without him or if no other competent tribunal can be constituted." 13. Similarly, in the case of Election Commission of India & Another v/s Dr. Similarly, in the case of Election Commission of India & Another v/s Dr. Subrmanian Swamy & Another reported in 1996 AIR 1810 , the Hon'ble Supreme Court has dealt with the issue of 'Doctrine of Necessity' and has held as under:- 'We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play." 14. In the present case, the Estate Officer has no personal interest/pecuniary interest nor there is any reason for him to act in a biased manner. By virtue of notification, the Defence Estate Officer is the Estate Officer keeping in view Section 3 of the Act of 1971. 15. Hon'ble Shri Justice G.P. Singh in his book Principal of Statutory Interpretation in Chapter 12 of the 14th Edition Page No.1071 under the title 'compliance with natural justice when necessary' has clarified this fact that the delegated legislation which is really legislative in character cannot be questioned for violating principles of natural justice in its making except when the statute itself provides for the requirement. The same position is settled by the Hon'ble Supreme Court in various precedents like Laxmi Khandsari v/s The State of Uttar Pradesh reported in AIR 1981 SC 873 , Rameshchandra v/s The State of Maharashtra reported in AIR 1981 SC 1127 and Union of India v/s Cynamide India Limited reported in AIR 1987 SC 1802 . 16. The same position is settled by the Hon'ble Supreme Court in various precedents like Laxmi Khandsari v/s The State of Uttar Pradesh reported in AIR 1981 SC 873 , Rameshchandra v/s The State of Maharashtra reported in AIR 1981 SC 1127 and Union of India v/s Cynamide India Limited reported in AIR 1987 SC 1802 . 16. Learned counsel for the respondent has placed reliance upon a judgment delivered in the case of Amar Nath Choudhary v/s Braithwaite & Company Limited reported in (2002) 2 SCC 290 and his contention is that in the aforesaid case the Hon'ble Supreme Court has exercised restraint in applying the issue of 'Doctrine of Necessity' as it would have been in flagrant disregard of principles of natural justice. 17. This Court has carefully gone through the aforesaid judgment. In the aforesaid case the Hon'ble Supreme Court has held as under:- 'One of the principles of natural justice is that no person shall be a judge in his own cause or the adjudicating authority must be impartial and must act without any kind of bias. The said rule against bias has its origin from the maxim known as 'Debet esse Judex in Propria Causa', which is based on the principle that justice not only be done but should manifestly be seen to be done. This could be possible only when a judge or an adjudicating authority decides the matter impartially and without carrying any kind of bias. Bias may be of different kind and form. It may be pecuniary, personal or there may be bias as to the subject-matter etc. In the present case, we are not concerned with any of the aforesaid form of bias. What we are concerned with in the present case is whether an authority can sit in appeal against its own order passed in the capacity of Disciplinary Authority. In Financial Commissioner (Taxation) Punjab and others vs. Harbhajan Singh - 1996 (9) SCC 281 , it was held that the Settlement Officer has no jurisdiction to sit over the order passed by him as an Appellate Authority. In the present case, the subjectmatter of appeal before the Board was whether the order of removal passed by the Disciplinary Authority was in conformity with law. In the present case, the subjectmatter of appeal before the Board was whether the order of removal passed by the Disciplinary Authority was in conformity with law. It is not disputed that Shri S. Krishnaswami, the then Chairman-cum-Managing Director of the Company acted as a Disciplinary Authority as well as an Appellate Authority when he presided over and participated in the deliberations of the meeting of the Board while deciding the appeal of the appellant. Such a dual function is not permissible on account of established rule against bias. In a situation where such a dual function is discharged by one and the same authority, unless permitted by an act of legislation or statutory provision, the same would be contrary to rule against bias. Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he already prejudged the matter otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility. In that view of the matter, in the present case, fair play demanded that Shri Krishnaswmai, the then Chairman-cum-Managing Director of the Company ought not to have participated in the deliberations of the meeting of the Board when the Board heard and decided the appeal of the appellant." The finding arrived at by the Apex Court in the aforesaid case is not applicable in the instant case as the adjudicating authority is different from the appellate authority. In the present case, the Defence Estate Officer is the adjudicating authority and the District Judge is the appellate authority and no element of bias has been inferred by the Court. 18. In a nutshell, the issue of 'Doctrine of Necessity will prevail in the instant case as expounded by the Hon'ble Supreme Court in catena of judgments. The Estate Officer, being a public authority, has discharged his Public duty and thus it cannot be inferred that there was any pecuniary interest or the action taken in the matter is of biased nature. Thus in short, the principle that no one should be the judge on his own cause is not applicable in the present case. 19. Another example of 'Doctrine of Necessity' is the judicial scrutiny of the orders passed by the High Court on administrative side. Thus in short, the principle that no one should be the judge on his own cause is not applicable in the present case. 19. Another example of 'Doctrine of Necessity' is the judicial scrutiny of the orders passed by the High Court on administrative side. In a Full Court Meeting in which, all judges participate, a resolution is passed for taking disciplinary action against the judge, who is a member of District Judiciary and being aggrieved by the order inflicting punishment, the same is challenged before one of judges who was a party to a Full Court Resolution and again the 'Doctrine of Necessity' comes into play. 20. In the instant case also, the Estate Officer under the Act of 1971 has acted based upon the material produced before him. The learned District Judge has scrutinized the order passed by the Estate Officer under the Act of 1971 on merits and as there was violation of statutory provisions as contained under the Cantonment Act, he has declined to interfere with the order passed by the Estate Officer. 21. In light of the aforesaid, this Court is of the considered opinion that order passed by the learned Single Judge dated 19.09.2016 deserves to set aside and is accordingly, set aside and the order passed by the Estate Officer under the Act of 1971 and order passed by the District Judge, Mhow are hereby upheld. With the aforesaid, the present Writ Appeal stands allowed. Certified copy, as per rules.