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Chandra Prakash JaIn and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2217 of 1983
Judge
Reported inAIR1985All362
ActsUrban Land (Ceiling and Regulation) Act, 1976 - Sections 34; Constitution of India - Article 226
AppellantChandra Prakash JaIn and ors.
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateNaresh Chandra Rajvanshi, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
.....section 298 being fully complied with it cannot be said that there was violation of principles of natural justice in this case when the board never demanded that is called a personal hearing and never intimated to the government that it would like to produce materials in support of its explanation at some later stage. therefore where a provision like section 298 is fully complied with as in this case and the board does not ask for an opportunity for personal hearing or for production of materials in support of its explanation, principles of natural justice do not require that the state government should ask the board to appearfor a personal hearing and to produce materials in support of the explanation. it is well settled that absence of reasons does not always vitiate the order and..........in the matter' used in the proviso under section 34 of the act embodies one of the principles of natural justice and as such before rejecting the representation filed by the petitioners in reply to show cause notice, personal hearing should have been given to them. in support of this argument he relied upon fazal bhai dhala v. custodian general air 1961 sc 1397 and board of revenue v. sardarni vidyawati air 1962 sc 1217. i do not agree with this argument.5. in air 1961 sc 1397 it was observed while interpreting the expression reasonable opportunity of being heard used in proviso to section 26(1) of administration of evacuee property act that the custodian should allow the person concerned either personally or through counsel a reasonable opportunity of being heard. similarly in air.....
Judgment:
ORDER

G.B. Singh, J.

1. This writ petition has been preferred against the order dt. 24-1-83 passed by the Government of India, respondent 2 in exercise of its power under Section 34 of the Urban Land (Ceiling and Regulation) Aet 1976 (hereinafter referred to as the Act), setting aside the orders dt. 31-3-80 and 12-2-81 passed by the Competent Authority and remanding the case to him for readjudicating the matter, if there is any excess vacant land in the properties, known as bungalow No. 210-B West End Road and No. 195 Police Street, Sadar Meerul Cantonment.

2. The writ petition has been filed on the allegations that the petitioners were the owners of the bungalows Nos. 195 and 210-B. There are 17 buildings with dwelling units in bungalow No. 195 and each is entitled to exclusion of 500 sq. meters of land and similarly there are 56 buildings with dwelling units in bungalowNo. 210-B and each is entitled to exclusion of 500 sq. meters of the land as appurtenant to them. An area of 12,000 sq, meters is being used as an orchard and it is, therefore, covered under the provisions of Section 2(9) of the Act, The petitioner, therefore, filed statement under Section 6 of the Act to the effect that there was no excess vacant land. The Competent Authority on the basis of the material placed before him held vide his order dt. 31-3-80 that there is no excess vacant land in the aforesaid two bungalows. After the aforesaid order, the petitioners moved an application under Section 27 of the Act for permission to dispose of the land forming part of the bungalow No, 195 which was accorded vide order dt. 12-2-81 and on the basis of the aforesaid permission a part of that property was sold. Thereafter the petitioners moved another application under Section 27 of the Act for seeking permission for disposing of all the properties comprised in the aforesaid two bunglows and the competent authority observed in its order dt. 16-2-81 that there was no necessity of obtaining any permission from him. The Ministry of Defence, Government of India, respondent 2, served a notice dt. 23-9-82 on the petitioners to show cause why the order dt. 31-3-80 passed by the Competent Authority being wrong be not set aside under Section 34 of the Act. In response of the notice the petitioners filed then-representation and thereafter an order dt. 24-1 -83 was passed under Section 34 of the Act setting aside the order dt; 31-3-80 passed by the competent authority and remanding the case for reconsideration. The order passed by the Government of India is a non speaking order and before passing it no opportunity for personal hearing was given to the petitioners. The order dt. 31-3-80 was appealable and since no appeal was filed under Section 33 of the Act the order became final and it could not be quashed under Section 34 of the Act. The notice to show cause dt. 23-9-82 contained vague assertions relating to number of buildings in the two bunglows and that the area of 12,115 sq. meters was not covered by trees in such a number as to constitute an orchard. The petitioners, therefore, prayed that the impugned order dt. 24-1-83 may be quashed.

3. It was pleaded in the counter-affidavit on behalf of the respondents that the full facts were not placed before the CompetentAuthority and some of the buildings shown to be existing in the two bungalows were not existing at all and some of them were unauthorised constructions and as such the land alleged to be lying underneath them and appurtenant to them could not be excluded, under the Act only agricultural land including the land used for horticulture could be excluded from the purview of the ceiling on urban land and since a few trees existed in the two bungalows it could not be held that the land was used for horticulture and as such was liable to exclusion from the ceiling limit and thus 12,000 sq. meters land was wrongly excluded from ceiling area as the land covered by orchard. It was also averred that the impugned order of remand passed by respondent 2 is valid and effective and the grounds taken against it are not acceptable.

4. The first point argued by the learned counsel for the petitioners is that the expression 'reasonable opportunity of being heard in the matter' used in the proviso under Section 34 of the Act embodies one of the principles of natural justice and as such before rejecting the representation filed by the petitioners in reply to show cause notice, personal hearing should have been given to them. In support of this argument he relied upon Fazal Bhai Dhala v. Custodian General AIR 1961 SC 1397 and Board of Revenue v. Sardarni Vidyawati AIR 1962 SC 1217. I do not agree with this argument.

5. In AIR 1961 SC 1397 it was observed while interpreting the expression reasonable opportunity of being heard used in proviso to Section 26(1) of Administration of Evacuee Property Act that the custodian should allow the person concerned either personally or through counsel a reasonable opportunity of being heard. Similarly in AIR 1962 SC 1217 it was held that the person affected should be given a hearing. It is nowhere expressed in these cases that the person concerned should be given personal hearing even if he does not ask for it. The question of allowing or giving personal hearing in absence of any statutory provision arises only when the person affected asks for it. Thus the rulings cited do not support the contention of the learned counsel for the petitioners.

6. Section 34 of the Act does not provide forany personal hearing. Its proviso simply embodies one of the principles of natural justice, audi alteram partem i.e. no one should be condemned unheard. In other words before an order is passed against any person reasonable opportunity of being heard must be given to him. Generally this principles includes two elements : (1) Notice; and (2) Hearing. In the present case it is undisputed that notice to show cause was given to the petitioners and in reply to it they filed representation. In that representation they did not pray for any personal hearing. The expression reasonable opportunity of being heard does not necessarily include oral or personal hearing. In other words oral or personal hearing is not regarded as a sine qua non of natural justice. In F. N. Roy v. Collector of Customs AIR 1957 SC 648 at page 652 following observations were made : --

'It was then stated that the petitioner had not been given personal hearing of the appeal that he preferred to the Central Board of Revenue and the application in revision to the Government. But there is no rule of natural justice that at every stage a person is entitled to a personal hearing'.

7. In State of Assam v. Gauhati Municipal Board AIR 1967 SC 1398 the State after considering explanation of the Board to show cause notice passed an order of supersession under Section 298 of Assam Municipal Act. It was contended that the State did not give personal hearing in the matter and an opportunity to produce material in support of the explanation and so the principle of natural justice was violated. In that connection following observations were made at pages 1399-1400 :

'However, we are definitely of opinion that the provisions of Section 298 being fully complied with it cannot be said that there was violation of principles of natural justice in this case when the Board never demanded that is called a personal hearing and never intimated to the Government that it would like to produce materials in support of its explanation at some later stage. Therefore where a provision like Section 298 is fully complied with as in this case and the Board does not ask for an opportunity for personal hearing or for production of materials in support of its explanation, principles of natural justice do not require that the State Government should ask the Board to appearfor a personal hearing and to produce materials in support of the explanation. In the absence of any demand by the Board of the nature indicated above, we cannot agree with the High Court that merely because the State Government did not call upon the Board to appear for a personal hearing and to produce materials in support of its explanation it violated the principles of natural justice.'

8. Similarly in Union of India v. Jyoti Bakash Mitter AIR 1971 SC 1093 it was laid down that the President while determining age of a High Court Judge discharges Judicial and not executive function and rules of natural justice should be followed in such a matter but personal hearing to concerned Judge is not obligatory. In another case Farid Ahmad v. Municipal Corporation, AIR 1976 SC 2095 the observations are to the effect that the right of personal hearing cannot be denied if it is conferred by the statute. It follows from all this that the principles of natural justice do not require personal hearing and the personal hearing cannot be claimed as of right unless it is granted by a statute. Since there is no provision to this effect in Section 34 of the Act, absence of personal hearing does not vitiate the impugned order.

9. The next point argued by the learned counsel for the petitioners is that the State Government did not pass a speaking order assigning reasons for rejecting the representation and remanding the case to the Competent Authority for reconsideration. Learned counsel for the petitioners in order to support this argument referred to Bhagat Raja v. Union of India AIR 1967 SC 1606 and Mahabir Prasad Santosh Kumar v. State of U. P. AIR 1970 SC 1302. The observations made in these cases are to the effect that in revision or order cancelling the licence speaking order should be passed. In my opinion this argument is also of little assistance to the learned counsel for the petitioners.

10. The impugned order is dt. 24-1-83 (Annexure X). It reveals that the Central Government in exercise of the powers conferred under Section 34 of the Act considered the order of the Competent Authority dt. 31-3-80 and the representation made on behalf of the petitioners on 18-12-82 (Ann. IX) and then set aside the order of the Competent Authority and remanded the case for reconsideration.There is no doubt that this order does not contain any reasons but it does not make the order liable to be set aside on this ground alone. The notice to show cause dt. 23-9-82 contained main grounds on which the impugned order of the Competent Authority was to be considered. It referred to the number of the buildings said to be existing over the two bungalows and the area found as an orchard by the Competent Authority. The representation of the petitioners (Ann. IX) shows that they tried to meet those grounds and since they could not satisfy the authority concerned, the impugned order was set aside and the case was remanded. In the counter affidavit filed on behalf of the respondents necessary details due to which remand became necessary have been given. Since the representation was not rejected on merits and the remand was felt necessary the absence of reasons in the order of the Central Government cannot be much emphasised. It is possible that giving of reasons might have prejudiced the mind of the Competent Authority while reconsidering the matter afresh. On this ground also much stress cannot be laid on absence of reasons in the impugned order.

11. Section 34 of the Act does not require that reasons should be recorded in support of the order passed under it. Thus there was no statutory obligation on the Central Government to record reasons while passing the impugned order. The recording of reasons was argued on the basis of the principle of natural justice. It is well settled that absence of reasons does not always vitiate the order and every case is to be adjudged in the light of its own facts and circumstances. If there is material in support of the order recorded without reason it is not held vitiated in the eye of law.

12. In Wool Combers of India Ltd. v. Wool Comber's Worker's Union, AIR 1973 SC 2758 it was observed in relation to the award by the Industrial Tribunal that the absence of reasons in support of the conclusions is indeed a serious flaw in an award but it cannot be set aside simply on that score, if there is evidence on the record in support of the Tribunal's conclusions. Similarly in Bang Nath v. Daulat Rao AIR 1975 SC 2146 where the State Government while disposing of a statutory appeal under Hyderabad Abolition of Inamsand Cash Grants Act did not record reasons the Supreme Court did not interfere with the order merely on that account because the facts and circumstances supported the order. Apart from this in Madhya Pradesh Industries Ltd. v. Union of India, AIR 1966 SC 671 observations have been made to the effect that it is not necessary that statutory tribunals should always give reasons in support of the order and omission to give reasons does not justify by itself to quash the order. Similarly in the Chairman Board of Mining Examination v. Ramjee, AIR 1977 SC 965 (para 13) it was held that :--

'Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of.'

13. In the present case three grounds for setting aside the order of Competent Authority were given in the notice to show cause and they were giving sufficient indication to the petitioners about the reasons on the basis of which interference was proposed. It is significant to mention that in the representation the petitioners did not make any serious attempt to meet these grounds. Moreover the materials placed before the Court indicate that there were reasonable grounds for interference and thus absence of reasons in the impugned order alone do not make it liable to be set aside. Thus the second argument of the learned counsel for the petitioners also does not prevail.

14. No other point was pressed. The impugned order does not appear to have been passed arbitrarily. The material placed on the other hand shows that the order of remand was just and appropriate in the circumstances of the case.

15. In the result, the writ petition has no force. It is, therefore, dismissed. Costs easy.


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