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2021 DIGILAW 873 (JHR)

Chhoti Mahra v. Ishwari Poddar

2021-10-18

RAJESH SHANKAR

body2021
JUDGMENT : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order dated 24.07.2018 (signed on 26.07.2018) (Annexure-3 to the writ petition) passed by the Commissioner, Santhal Pargana Division, Dumka in R.M.A. No. 05/2015-16 whereby the order dated 06.09.2014 passed by the Settlement Officer, Santhal Pargana, Dumka in Settlement Miscellaneous Appeal No. 57/2010 has been confirmed and the second appeal preferred by the petitioner against the said order has been dismissed. 2. Learned counsel for the petitioner while challenging the order dated 26.07.2018 passed by the Commissioner, Santhal Pargana Division, Dumka, submits that the same has been passed without providing due opportunity of hearing to the petitioner that too, without assigning any reason. 3. Since the argument of learned counsel for the petitioner is confined to the aforesaid aspect, the factual claim made by the petitioner with regard to the land in question is not required to be mentioned in detail. 4. Learned counsel for the petitioner submits that the respondent No. 1 filed M.P. Case No. 580/2006 in the Court of the Assistant Settlement Officer, Santhal Pargana, Dumka requesting inter-alia for deleting the name of the petitioner from the new survey settlement document, to substitute his name in that place and to issue the settlement papers in his favour. The petitioner was not made party-respondent in the said case and hence he intervened in the same. The Assistant Settlement Officer, Dumka vide order dated 27.08.2010, finally dismissed M.P. Case No. 580/2006 observing inter-alia that the issue raised by the respondent No. 1 was relating to title of the said land which could not be entertained by the said authority. The respondent No. 1, being aggrieved with the order dated 27.08.2010, preferred Settlement Misc. Appeal No. 57/2010 before the Settlement Officer, Dumka which, however, was allowed vide order dated 06.09.2014. The petitioner thereafter challenged the order dated 06.09.2014 in the Court of the Commissioner, Santhal Pargana Division, Dumka by filing R.M.A. No. 05/2015-16. It is further submitted that R.M.A. No. 05/2015-16 was taken up by the Commissioner, Santhal Pargana Division, Dumka on 08.04.2015 and the same was ordered to be listed for consideration on the point of admission on 02.07.2015. The petitioner thereafter challenged the order dated 06.09.2014 in the Court of the Commissioner, Santhal Pargana Division, Dumka by filing R.M.A. No. 05/2015-16. It is further submitted that R.M.A. No. 05/2015-16 was taken up by the Commissioner, Santhal Pargana Division, Dumka on 08.04.2015 and the same was ordered to be listed for consideration on the point of admission on 02.07.2015. Though the petitioner was represented on each and every date fixed in R.M.A. No. 05/2015-16, yet he was shown absent on 24.07.2018 as would be evident from the relevant part of the order sheet of the said case annexed as Annexure-3 to the present writ petition. The order sheet would further suggest that on the said date, the order was separately dictated by the learned Commissioner. Since the petitioner was totally unaware of passing of any such order, he applied for certified copy of the orders passed in R.M.A. No. 05/2015-16 and thereafter came to know that the Commissioner, Santhal Pargana Division, Dumka had passed a separate order on 26.07.2018 dismissing the second appeal of the petitioner, a copy of which has been annexed at page 33 as part of Annexure-3 to the writ petition. It is also submitted that the learned Commissioner while passing the impugned order dated 26.07.2018, has dismissed the said appeal merely observing that the order of the Settlement Officer, Dumka is judicious requiring no interference. It is thus submitted that the petitioner has not only been deprived of due opportunity of hearing to present his case, but the impugned order dated 26.07.2018 passed by the Commissioner, Santhal Pargana Division, Dumka is also bereft of any reason whatsoever. 5. Mr. A. K. Choudhary, learned counsel for the respondent No. 1, submits that R.M.A. No. 05/2015-16 filed by the petitioner has rightly been dismissed by the Commissioner, Santhal Pargana Division, Dumka vide the impugned order dated 26.07.2018 as the order passed by the Settlement Officer, Dumka was completely justified and legal. 6. Heard learned counsel for the parties and perused the relevant materials available on record. The main submission of learned counsel for the petitioner is that the petitioner has not been granted due opportunity of hearing to present his case and the Commissioner Santhal Pargana Division, Dumka has dismissed R.M.A. No. 05/2015-16 without assigning any reason whatsoever. 6. Heard learned counsel for the parties and perused the relevant materials available on record. The main submission of learned counsel for the petitioner is that the petitioner has not been granted due opportunity of hearing to present his case and the Commissioner Santhal Pargana Division, Dumka has dismissed R.M.A. No. 05/2015-16 without assigning any reason whatsoever. To appreciate the said submission of learned counsel for the petitioner, the order dated 26.07.2018 passed by the Commissioner, Santhal Pargana Division, Dumka is reproduced hereunder: “This case has been put up today. The appellant is continuously absent. I have gone through the memo of appeal and the order passed by the Settlement Officer, Dumka. The order of Settlement Officer is judicious and needs no interference. Therefore this appeal is hereby dismissed.” 7. On bare perusal of the aforesaid order, it would appear that no reason whatsoever has been assigned by the Commissioner, Santhal Pargana Division, Dumka while dismissing the second appeal preferred by the petitioner. It has merely been observed that the order of the Settlement Officer is judicious and needs no interference. 8. 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 Donough more 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. 468-69: 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 (nemo debet esse judex propria causa) 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.” 9. In the case of Kranti Associates Private Limited and Another vs. Masood Ahmed Khan and Others, (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. 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. See Ruiz Torija vs. Spain EHRR 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.” 10. It is a settled position of law that any administrative authority while exercising quasi-judicial function, must record the reasons in his order which would enable the superior Courts including this Court exercising supervisory jurisdiction under Article 227 of the Constitution of India to appreciate the reason so as to take an effective decision. Recording of reason also minimizes the possibility of arbitrariness and introduces clarity in the decision making process as well as conforms to the requirements of the principles of audi alteram partem. Recording of reason also minimizes the possibility of arbitrariness and introduces clarity in the decision making process as well as conforms to the requirements of the principles of audi alteram partem. The impugned order dated 26.07.2018 passed by the Commissioner Santhal Pargana Division, Dumka is cryptic and bereft of any reason. Moreover, learned counsel for the petitioner has invited the attention of this Court to the remark made by the Copying Section of the office of the Commissioner, Santhal Pargana Division, Dumka in response to the requisition made by the petitioner for obtaining the certified copy of the order sheets of R.M.A. No. 05/2015-16 which has been annexed as part of Annexure-4 to the writ petition. The said remark clearly suggests that the orders passed in the said case from 02.07.2015 to 17.07.2018 have not been signed. That being the factual position, it may be presumed that there has been no order of the Commissioner, Santhal Pargana Division, Dumka from 02.07.2015 to 17.07.2018. The manner in which the Commissioner, Santhal Pargana Division, Dumka has conducted R.M.A. No. 05/2015-16, deserves to be deprecated being a glaring example of procedural impropriety as well as non-application of mind while passing the impugned order dated 26.07.2018. On the said score alone, the impugned order dated 26.07.2018 passed by the Commissioner, Santhal Pargana Division, Dumka in R.M.A. No. 05/2015-16 cannot be sustained in law and hence the same is quashed/set aside. The matter is remanded to the Commissioner, Santhal Pargana Division, Dumka with a direction to issue fresh notices to the concerned parties in R.M.A. No. 05/2015-16 and after providing due opportunity of hearing to them, to pass an appropriate informed order in accordance with law within a period of two months from the date of appearance of the respective parties before him. 11. The present writ petition is accordingly disposed of with the aforesaid observation and direction. 12. Consequently, I.A. No. 2892/2021 also stands disposed of.