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2023 DIGILAW 1420 (AP)

Jarripothula Veera Venkata Satyanarayana v. State of Andhra Pradesh

2023-11-01

SUBBA REDDY SATTI

body2023
JUDGMENT SUBBA REDDY SATTI, J. - The present writ petition is filed under Article 226 of the Constitution of India seeking the following relief: "... to issue a Writ Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd respondent in issuing impugned confirmation order vide U.C.Notice No.229/1075/ELR/UC/2021 dtd. 23/9/2022 under Sec. 454(2) and 461(2) OF AMPC ACT, 1955 and UNDER Sec. 86, 89(3) OF APMR and UDA ACT, 2016 thereby making arrangments to demolish petitioners building situated at D.NO.24B-1-55 of papa saheb road street/colony, RR peta area, Eluru Municipal Corporation, West Godavari District without considering the reply dtd. 5/7/2021 to the provisional order 12/5/2021 and also the reply dtd. 4/10/2022 issued against the impugned confirmation order dtd. 23/9/2022 as illegal, arbitrary, unconstitutional and violation of principles of natural justice article 21, 300-A of Constitution of India and consequently set aside the impugned confirmation order vide U.C.Notice No.229/1075/ELR/UC/2021 dtd. 23/9/2022 under Sec. 454(2) and 461(2) OF AMPC ACT, 1955 and UNDER Sec. 86, 89(3) OF APMR and UDA ACT, 2016 thereby making arrangments to demolish petitioners building situated at D.NO.24B-1-55 of papa saheb road street/colony, RR peta area, Eluru Municipal Corporation, West Godavari District and to pass such other order or orders...." 2. In the affidavit it was contended that the Commissioner of the 2nd respondent-Corporation issued notice vide U.C.Notice No.229/1075/ELR/UC/2021 dtd. 23/9/2022 under Sec. 454(2) and 461(2) OF Andhra Pradesh Municipal Corporations Act, 1955 and under Sec. 86, 89(3) OF Andhra Pradesh Metropolitan Region and Urban Development Act, 2016, pointing out certain deviations. Petitioner submitted explanation on 5/7/2021. Conformation order dtd. 23/9/2022 was passed by the Commissioner of the 2nd respondent-Corporation. Assailing the same, the above writ petition is filed. 3. Heard Sri P.Aditya Harsha Vardhan, learned counsel for the petitioner and Sri G.Naresh Kumar, learned counsel representing Sri M.Manohar Reddy, learned Standing Counsel appearing for the 2nd respondent. 4. The order impugned is consisting of two paragraphs. Relevant portion in first paragraph of the order dtd. 23/9/2022 reads as follows: "...But, you have neither pulled down the the unauthorized construction nor submitted any reply to the show cause notice till date. 4. The order impugned is consisting of two paragraphs. Relevant portion in first paragraph of the order dtd. 23/9/2022 reads as follows: "...But, you have neither pulled down the the unauthorized construction nor submitted any reply to the show cause notice till date. Therefore, you are liable for issue of confirmation order Under Sec. 454(2) and 461(2) OF Andhra Pradesh Municipal Corporations Act, 1955 and under Sec. 86, 89(3) OF Andhra Pradesh Metropolitan Region and Urban Development Act, 2016." Relevant portion in the second paragraph reads as follows: "Sir/Smt JVV Satyanarayana has submitted a reply to the above said show cause notice. But the reply given is not satisfactory and contrary to provisions of rules is in force." 5. Thus, a perusal of the two paragraphs referred to supra, in the first instance, would discern that the authority is not clear as to whether petitioner submitted the explanation or not. Even the later part of the order, does not discern consideration of explanation by the authority. 6. Whenever an explanation is submitted to the notice, the authority should consider the explanation objectively. The authority must form its opinion after duly considering the material before it. The word 'consider' means to think over. 7. The word 'consider' was analyzed by the Hon'ble Supreme Court in Chairman Life Insurance Corporation of India & Ors v. A Masilamani, (2013) 6 SCC 530 and held thus: "19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order." 8. In Bhikhubhaivithalabhai Patel vs. State of Gujarat, 2008 (4) SCC 144 the Hon'ble Apex Court observed as under: "... The term 'consider means to think over; it connotes that there should be active application of the mind. In other words, the term 'consider' postulates consideration of all the relevant aspects of the matter. ..." 9. In Bhikhubhaivithalabhai Patel vs. State of Gujarat, 2008 (4) SCC 144 the Hon'ble Apex Court observed as under: "... The term 'consider means to think over; it connotes that there should be active application of the mind. In other words, the term 'consider' postulates consideration of all the relevant aspects of the matter. ..." 9. In Oriental Bank of Commerce Vs. Sunder Lal Jain, 2008 (2) SCC 280 the Hon'ble Apex Court held as under: "... Consider means to look at closely and carefully; to think or deliberate on; to take into account. ..." 10. In Ram Chander Vs. Union of India, 1986 (3) SCC 103 the Hon'ble Apex Court held that "consider" means an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decisions. 11. In Divisional Personnel Officer, Southern Railway Vs. T.R. Chellappan, 1976 (3) SCC 190 , the Hon'ble Apex Court held that the term "consider" postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person. 12. In Barium Chemicals Ltd. Vs. A.J. Rana, 1972 (1) SCC 240 the Hon'ble Apex Court held that the dictionary meaning of the word 'consider' is to review attentively, to survey, examine, inspect (arch.), to look attentively, to contemplate mentally, to think over, mediate on, give heed to, take note, to think deliberately, bethink oneself to reflect'. The words 'to consider' means to think with care. It is also mentioned that to 'consider' is to fix the mind upon with a view to careful examination, etc. 13. In view of the expressions of the Hon'ble Apex Court, in the considered opinion of this Court, the authority failed to consider the reply/explanation submitted by the petitioner, objectively. 14. In the proceedings, it was mentioned that the reply given is not satisfactory and contrary to the provisions of the Rules in force. As seen from the proceedings, that is only consideration by the authority to the explanation submitted by the petitioner, which in the opinion of the court, is not at all consideration of explanation. 15. The order passed by the authority, in the opinion of this Court, suffers from lack of reasons. Reasons are heart and soul of every order. 16. As seen from the proceedings, that is only consideration by the authority to the explanation submitted by the petitioner, which in the opinion of the court, is not at all consideration of explanation. 15. The order passed by the authority, in the opinion of this Court, suffers from lack of reasons. Reasons are heart and soul of every order. 16. In Poonamchand v. Greater Hyderabad Municipal Corporation, 2012 (1) ALT 524 (S.B.) this Court has held in para-7 as under: "7.A perusal of the impugned notice shows that respondent No. 1 has not dealt with the explanation of the petitioner and has rejected the same with a cryptic observation that the same is not satisfactory and "it may not be considered". In the opinion of this Court, the very purpose of issuing a notice under Sec. 452(1) of the Act is to give an opportunity to a person, who has constructed the building in an illegal or unauthorised manner, to submit his 10 explanation. It is, therefore, obligatory on the part of respondent No. 1 to consider the explanation. If satisfactory explanation is offered by the owner of the building, respondent No. 1 shall drop further proceedings. It is only in cases where such explanation is not offered, that respondent No. 1 is not entitled to proceed further. Unless the Commissioner refers to the contents of the explanation and gives reasons for coming to the conclusion that the explanation is not satisfactory, he cannot proceed with further action and issue notice under Sec. 636 of the Act. Failure to deal with the explanation renders the very purpose of issuing notice nugatory." 17. In the case of K. Ashok Kumar v. Greater Hyderabad Municipal Corporation, 2013 (2) ALT 517 (S.B.) this Court held in paras-2 & 3 as under: "2. Sec. 636 of the Act gives power to the Commissioner to require any construction made without obtaining necessary permission to be removed and in case the person to whom such a direction was issued by the Commissioner ignores or fails to remove any structure within the time specified, the said task will be carried out by the corporation at the expense of the said individual. It is not in dispute that the petitioners have been issued a notice in terms of Sec. 452 of the Act on 31/7/2012 for which a detailed reply has been filed by the petitioners on 16/8/2012. It is not in dispute that the petitioners have been issued a notice in terms of Sec. 452 of the Act on 31/7/2012 for which a detailed reply has been filed by the petitioners on 16/8/2012. They raised several objections. Whether those objections are tenable or otherwise would be decided by the person who is concluding the exercise in accordance with Sec. 636 of the Act. Whereas the relevant portion of the impugned order reads as under: "the reply submitted by you vide reference 3rd cited in response to the showcause notice has been examined and the same is not found satisfactory." "3. To say the least this is most unsatisfactory way of deciding an issue. Every order must contain the reasons for the conclusion arrived thereat. It is the reasons which provide the links to the conclusions. The relevance of those reasons must lend support to the conclusion. The expressions "found not satisfactory" are reflective of the conclusion but, not the reason. As to why the explanation offered by the petitioners is not satisfactory, forms part of their process of reasoning." 18. In Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496 on the point of necessity of giving reasons by a body or authority in support of its decision, the Hon'ble Apex Court summarized the legal position in paragraph-47, which is reproduced 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 decisionmaker 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. (e) Reasons reassure that discretion has been exercised by the decisionmaker 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 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, (1987) 100 Harvard Law Review 731-37] (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 v. Spain, (1994) 19 EHRR 553, EHRR, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405 (CA), 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. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, 13 requirement of giving reasons for the decision is of the essence and is virtually a part of "due process". 19. The order impugned dtd. 23/9/2022 does not contain reasons for not accepting the explanation submitted by the petitioner. As discussed supra, it was observed that explanation was not submitted and reply given by the petitioner is not satisfactory and contrary to provisions of rules in force. In the opinion of this Court, the authority ought to have considered the explanation with the material available and passed a reasoned order. 20. In view of the discussion supra, the order dtd. 23/9/2022 of the Commissioner of the 2nd respondent-Corporation is liable to be set aside. 21. Accordingly, the Writ Petition is allowed. The confirmation order vide notice No.229/1075/ELR/UC/2021 dtd. 23/9/2022 of Commissioner, Eluru Municipal Corporation is hereby set aside. The matter is remitted back to the Commissioner of the 2nd respondent-Corporation to consider the matter afresh and pass reasoned order, if necessary, by giving opportunity of personal hearing to the petitioner. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand dismissed.