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Radhika Charan Banerjee Vs. Sambalpur Municipality and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 1887 of 1975
Judge
Reported inAIR1979Ori69; 46(1978)CLT404
ActsOrissa Municipal Act, 1950 - Sections 273A and 274; Constitution of India - Article 226
AppellantRadhika Charan Banerjee
RespondentSambalpur Municipality and ors.
Appellant AdvocateS.S. Basu and ;S.C. Basu, Advs.
Respondent AdvocateS.C. Mohapatra and ;L.D. Rath, Advs.
DispositionPetition allowed
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........it is imperative to give the appellant an adequate opportunity of being heard before deciding the appeal. opportunity of hearing does not always necessarily mean giving a personal hearing. a written representation, if complete and elaborate in all respects fully explaining the points of view of the appellant, when accepted may, in some cases, amount to affording effective opportunity of hearing. what particular rule of natural justice should apply to a given case must also depend to a great extent on the facts and circumstances of that case.4. a writ of certiorari will, indeed, be issued to quash annexures 11 and 12 if the municipal council which was discharging its quasi-judicial function in disposing of the petitioner's appeal is found to have acted in breach of principles of natural.....
Judgment:

S.K. Ray, C.J.

1. The petitioner obtained lease of Nazul plot No. 1434/11 measuring Ac. 0.06d. from the Collector of Sambalpur for the purpose of construction of a house subject to the condition that he should complete construction of his house within three years from the date of the lease, i.e., 14-9-68. Within the stipulated period, the petitioner made an application to the Executive Officer, Sambalpur Municipality with a blue print plan of his proposed building and after obtaining necessary sanction and approval of his plan, completed his building. In due course the building was allotted a holding number and was assessed to municipal tax. The petitioner is paying holding tax and other taxes with effect from 1-1-1972.

2. On 21-10-74 the petitioner received a notice from opposite party No. 2 that the latter accompanied by the Municipal Engineer would make a joint inspection of his building on account of an objection filed by one R.K. Biswal D/-3-5-74, that the petitioner had, in constructing the septic pits of his latrine, encroached upon the objector's portionof the sweeper's passage of 3 ft. width in between the house of the petitioner and of Dr. Gour Mohan Biswal. Thereafter, opposite party No. 2 served a provisional order under S. 273-A of the Orissa Municipal Act (hereinafter called the Act) (Annexure-8) calling upon the petitioner to show cause why a part of his construction which had been unlawfully constructed being beyond the site plan sanctioned should not be demolished. The petitioner showed cause by asserting that there was no joint passage of the petitioner and the objector and that the sweeper's passage of 3'-3' entirely appertained to his plot. With-out however, affording the petitioner any opportunity of hearing on his show cause, the opposite party No. 2 confirmed the provisional order by his final order dated 15-1-75 (Annexure 10). The petitioner thereupon preferred an appeal to the District Magistrate who was then discharging the functions of the Municipal Council. This appeal was ultimately dismissed without fixing a date of hearing and without affording adequate opportunity to the petitioner to substantiate his grounds in the memo of appeal (Annexure-11). An intimation was sent to the petitioner that his appeal had been rejected by the Council in its resolution No. 11 dated 31-5-75 which barely stated that the appeal memo was read and rejected (Annex-ure-12). There is no indication whatsoever that the grounds of appeal were considered and no reasons for rejecting the appeal have been set out. There is no controversy and, in fact, it has been admitted by opposite party No. 2 in paras 18 and 19 of his counter that the petitioner had not been given any opportunity of being heard by the Council. Opposite party No. 2 similarly admits that he did not hear the petitioner on his show cause while confirming his provisional order under Section 273-A of the Act. The petitioner, therefore, has prayed for quashing Annexures 10 and 11 and Annexure-12.

3. The first point canvassed is that the petitioner is entitled to be given an opportunity of being heard by the Municipal Council on his memorandum of appeal and as that appeal has been disposed of without affording him such opportunity, Annexure-11 and the consequent intimation of the order (Annexure-12) are bound to be quashed and the Municipal Council should be directed to rehear the appeal after giving him an opportunity to canvass his points before it. Mr. Mohapatra for the opposite parties, on the other hand, contends that though Section 274 of the Act confers a right of appeal on the petitioner, it does not provide for personal hearing of the appellant by the Council. In this connection he has compared the language of Section 153 (4) with the language of Section 274 and argued that where the Legislature intended to confer a right of being heard it has said so, as in Section 153 (4), but where no right of hearing is conferred on the appellant, except a right of appeal, as in cases of Section 274, 322 and 334, similar language as in Section 153 (4) expressly conferring right to be heard has been omitted. This contention can have no validity. The expression used in Section 153 (4) of the Act is 'opportunity of being, heard' not 'personal hearing'. A right of appeal wherever conferred includes a right of being afforded an opportunity of being heard, irrespective of the language used in conferring such a right. That is a part and parcel of the principle of natural justice. Where, an authority is required to act in a quasi-judicial capacity it is imperative to give the appellant an adequate opportunity of being heard before deciding the appeal. Opportunity of hearing does not always necessarily mean giving a personal hearing. A written representation, if complete and elaborate in all respects fully explaining the points of view of the appellant, when accepted may, in some cases, amount to affording effective opportunity of hearing. What particular rule of natural justice should apply to a given case must also depend to a great extent on the facts and circumstances of that case.

4. A writ of certiorari will, indeed, be issued to quash Annexures 11 and 12 if the Municipal Council which was discharging its quasi-judicial function in disposing of the petitioner's appeal is found to have acted in breach of principles of natural justice or decided the appeal without giving the petitioner an opportunity to be heard.

The appellant in his appeal memo, a copy of which was produced before us by the learned counsel for the opposite parties, just stated his grounds without elaborating upon them or explaining them in detail and it is really difficult to appreciate them without assistance of the petitioner or his counsel. The appeal memo, therefore, cannot be considered to be a written representation of the appellant's grievances fully explaining his points. In fact, the petitionerhad specifically prayed in his appealmemo that his advocate be permitted tobe heard in the matter. What happenedin this case was that the appeal memowas simply read by the Municipal Council and rejected. In the circumstances,there is no manner of doubt that theappellant has not been afforded effectiveopportunity of meeting relevant allegations made against him before the Executive Officer acting under Section 273-A ofthe Act, nor an opportunity of adequately representing his part of the case before the Muinicipal Council was afforded, specially when his appeal memo, besides stating the grounds laconically, didnot contain a full and complete representation of his part of the case on abare reading of which the MunicipalCouncil could apprehend or understandhis entire case. Further, when the appellant had asked for being afforded opportunity to be heard while exercisinghis right of appeal under Section 274 of theAct, it was obviously erroneous to refuse him that opportunity. By makingsuch a prayer the appellant obviously intended to say that his memo of appealwas not a complete representation of hispart of the case and that there werematters which required to be explainedorally.There is no doubt in our mind thatno effective opportunity had been afforded to the petitioner by the Municipal Council in disposing of his appealwithout acceding to the petitioner's express request to allow his counsel to represent his case. For these reasons An-nexure-11 and consequentially An-nexure-12 are liable to be quashed. Inview of the order which we are goingto pass, it is not necessary to decide theprayer of the petitioner for quashing theother annexures.

5. In the result, a writ of certiorari be issued quashing Annexures 11 and 12 and directing opposite party No. 1 to rehear the petitioner's appeal after giving him an effective opportunity of hearing, that is to say, by giving him an opportunity to address the Council either personally or through his Advocate.

The writ petition is, accordingly, allowed, but there will be no order as to costs.

J.K. Mohanty, J.

6. I agree.


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