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2020 DIGILAW 564 (JHR)

Mukesh Randive v. State of Jharkhand

2020-06-03

RAJESH SHANKAR

body2020
JUDGMENT : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order dated 21.01.2020 (Annexure-8 to the writ petition) passed by the respondent No. 3 in Misc. Case No. 01/2020 whereby the representation of the petitioner preferred in the light of the order passed by this Court in W.P. (C) No. 2132 of 2015 has been rejected. Further prayer has been made for issuance of a direction upon the respondents to immediately settle two acres of agricultural land and 12½ decimals of residential land in favour of the petitioner in accordance with Circular No. 4725 dated 16th August, 1972 as also Resolution No. 5/S.Bhu.Vividh-156/2016-6144/Ra dated 21.12.2017 as the petitioner is a retired member of the Armed Forces and is entitled to get the said land settled in his favour. 2. The factual background of the case, as stated in the writ petition, is that the petitioner was a member of the Border Security Forces, who retired from 56 A.P.O. and B.S.F. on 30.09.2006. Thereafter, the petitioner applied for allocation of land at Dhanbad for residential as well as cultivation purposes, which was recommended by the concerned Commanding Officer of B.S.F. The petitioner’s representation was forwarded to the Circle Officer, Govindpur vide Settlement Record No. 15/2007-08 for the purpose of identification of the land to be settled in favour of the petitioner. After due inquiry, the land appertaining to Plot No. 292, Khata No. 103, Mouza-Phuphadih, Circle-Govindpur, District-Dhanbad, measuring an area of 87 Decimals was identified for the purpose of settlement in favour of the petitioner. Thereafter, the petitioner swore an affidavit before the Executive Magistrate, Asansol that he did not hold any immovable property anywhere in India. One Councilor of Asansol Municipal Corporation also issued a certificate to the effect that there was no land in the name of the petitioner or his father within his jurisdiction and thereafter ‘No Land Certificate’ was issued by the competent authority as required by the respondent No. 5 and the same was handed over to the said authority. One Councilor of Asansol Municipal Corporation also issued a certificate to the effect that there was no land in the name of the petitioner or his father within his jurisdiction and thereafter ‘No Land Certificate’ was issued by the competent authority as required by the respondent No. 5 and the same was handed over to the said authority. However, the respondent No. 5 did not take any action in the matter and therefore the petitioner filed the writ petition being W.P. (C) No. 2132 of 2015 before this Court, which was disposed of vide order dated 25.08.2018 passed by this Court giving liberty to the petitioner to file a representation before the respondent No. 3, who was directed to dispose of the same within a period of four weeks from the date of the said representation. Pursuant to the said direction of this Court, the petitioner filed a representation dated 08.10.2018 before the respondent No. 3. However, the respondent No. 3 did not take any action in the matter and as such the petitioner filed Contempt Case (Civil) No. 329 of 2019. During the pendency of the said contempt case, the said representation of the petitioner was rejected vide order dated 21.01.2020 passed in Misc. Case No. 01/2020 on the ground that in view of the latest Resolution No. 5/S.Bhu.Vividh-156/2016-6144/Ra dated 21.12.2017, the petitioner is not eligible for such settlement. Thereafter, the contempt proceeding was dropped. Hence, the present writ petition. 3. Learned counsel for the petitioner submits that in view of the resolution of the State Government dated 21.12.2017, all retired persons of the Armed Forces are entitled to get 2 acres of agricultural land and 12½ decimals of residential land to be settled in their favour. It is further submitted that the petitioner’s representation was filed long back in the year 2007 as per the circular dated 16.08.1972 and thus his representation was required to be considered in view of that circular. The respondent No. 3 has summarily rejected the representation of the petitioner without assigning any reason. The respondents cannot be permitted to frustrate the welfare scheme framed by the Central Government for the benefit of the ex-members of the Armed Forces. 4. Mr. Sandeep Verma, learned AC to GP-VI, appearing on behalf of the State of Jharkhand, submits that the claim of the petitioner is not tenable in view of the latest resolution dated 21.12.2017. The respondents cannot be permitted to frustrate the welfare scheme framed by the Central Government for the benefit of the ex-members of the Armed Forces. 4. Mr. Sandeep Verma, learned AC to GP-VI, appearing on behalf of the State of Jharkhand, submits that the claim of the petitioner is not tenable in view of the latest resolution dated 21.12.2017. Since the matter of settlement of land in favour of the petitioner was pending till issuance of the circular dated 21.12.2017, the new circular would be applicable in the case of the petitioner. 5. Heard learned counsel for the parties and perused the relevant materials available on record. The petitioner has challenged the order dated 21.01.2020 passed by the respondent No. 3 in compliance of the order dated 25.08.2018 passed by this Court in W.P. (C) No. 2132 of 2015. On perusal of the impugned order dated 21.01.2020, it is evident that the claim of the petitioner has been summarily rejected merely stating that his claim is not tenable in view of the provisions of the resolution dated 21.12.2017. 6. In the case of S.N. Mukherjee vs. Union of India, (1990) 4 SCC 594 , the Hon’ble Supreme Court has held as under:- “35. The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American courts. An important consideration which has weighed with the court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions and (iii) minimise chances of arbitrariness in decision-making. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions and (iii) minimise chances of arbitrariness in decision-making. In this regard a distinction has been drawn between ordinary courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the standpoint of policy and expediency. 36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. 37. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. 37. Having considered the rationale for the requirement to record the reasons for the decision of an administrative authority exercising quasi-judicial functions we may now examine the legal basis for imposing this obligation. While considering this aspect the Donoughmore Committee observed that it may well be argued that there is a third principle of natural justice, namely, that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial. The Committee expressed the opinion that “there are some cases where the refusal to give grounds for a decision may be plainly unfair and this may be so, even when the decision is final and no further proceedings are open to the disappointed party by way of appeal or otherwise” and that “where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of the opportunity.” (p. 80) Prof. H.W.R. Wade has also expressed the view that “natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man’s sense of justice.” (See Wade, Administrative Law, 6th Edn. p. 548.) In Siemens Engineering Co. case this Court has taken the same view when it observed that “the rule requiring reasons to be given in support of an order is, like the principles of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process.” This decision proceeds on the basis that the two well known principles of natural justice, namely (i) that no man should be a judge in his own cause and (ii) that no person should be judged without a hearing, are not exhaustive and that in addition to these two principles there may be rules which seek to ensure fairness in the process of decision-making and can be regarded as part of the principles of natural justice. This view is in consonance with the law laid down by this Court in A.K. Kraipak vs. Union of India wherein it has been held: (SCR pp. 468-469: SCC p. 272, para-20) “The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (i) no one shall be a judge in his own cause and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must he held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice.” 7. In the case of Kranti Associates Private Limited vs. Masood Ahmed Khan, (2010) 9 SCC 496, the Hon’ble Supreme Court has held as under:- “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. (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 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. (See David Shapiro in Defence of Judicial Candor) (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. Ruiz Torija vs. Spain EHRR, at 562 para-29 and Anya vs. University of Oxford, 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.” 8. Thus, an administrative authority exercising quasi-judicial functions must record the reasons for its decision which would enable the Appellate Court as well as the High Court exercising supervisory jurisdiction under Article 227 of the Constitution of India to effectively exercise the appellate or supervisory power. Moreover, recording of reason would ensure due application of mind by the authority; introduce clarity in the decision and minimise chances of arbitrariness in decision-making. Moreover, recording of reason would ensure due application of mind by the authority; introduce clarity in the decision and minimise chances of arbitrariness in decision-making. The rule of requiring the reasons in support of an order would also serve the requirement of audi alteram partem which is a pivotal part of the principles of natural justice. 9. Learned AC to GP-VI appearing on behalf of the State of Jharkhand has tried to justify the impugned order dated 21.01.2020 by referring to the resolution dated 21.12.2017. 10. In the case of Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405 , the Constitutional Bench of the Hon’ble Supreme Court has held as under:- “8. The second equally relevant matter is that 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. We may here draw attention to the observations of Bose, J. in [Commr. of Police, Bombay vs. Gordhandas Bhanji, AIR 1952 SC 16 ]: “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 actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older. A caveat.” 11. It may thus be observed that any order which is bad in the beginning i.e. at the time of its issuance cannot be validated later on supplementing additional grounds in its support. Since the impugned order dated 21.01.2020 has been passed without referring to any relevant provision of the resolution dated 21.12.2017 which may be applicable in the case of the petitioner and there is no manifest application of mind by the respondent No. 3, the respondents cannot be allowed to agitate additional grounds covering the unreasoned order. Since the impugned order dated 21.01.2020 has been passed without referring to any relevant provision of the resolution dated 21.12.2017 which may be applicable in the case of the petitioner and there is no manifest application of mind by the respondent No. 3, the respondents cannot be allowed to agitate additional grounds covering the unreasoned order. Thus, without entering into the merit of the case, this Court is of the considered view that the matter should be considered afresh by way of speaking/reasoned order by the respondent No. 3. 12. In view of the aforesaid factual and legal position, the impugned order dated 21.01.2020 (Annexure-8 to the writ petition) passed by the respondent No. 3 in Misc. Case No. 01/2020 cannot be sustained in law and the same is hereby quashed. The matter is remanded to the respondent No. 3 to consider the same afresh keeping in view the relevant records as well as the aforesaid observations and judicial pronouncements as also the grounds which may be taken by the petitioner and to take an appropriate informed decision in accordance with law within a reasonable period preferably within a period of three months from the date of receipt/production of a copy of this order. 13. The present writ petition is, accordingly, disposed of.