Bombay High Court
Mr. Ghanshyam Kalidas Patel And Anr vs State Of Maharashtra Through Secretary ... on 29 January, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:4144
31-wp712-2016.doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.712 OF 2016
VAIBHAV
RAMESH
JADHAV
Digitally signed by
VAIBHAV RAMESH
JADHAV
Date: 2024.01.29
17:35:51 +0530
Ghanshyam Kalidas Patel & Anr. ... Petitioners
V/s.
The State of Maharashtra Through
Secretary Revenue & Forest Department
& Ors. ... Respondents
Mr. Vasudeo A. Gangal for the petitioners.
Mr. S. D. Rayrikar, AGP for the State/respondent Nos.1
to 3.
Ms. S. T. Pandey with Ms. Anima Mishra, Mr. Ashif
Husain i/by SBG Law for respondent Nos. 4 & 5.
Mr. Yogesh Panchal with Mr. Mayur Panchal for
respondent Nos.6(a)(b)(c) & 9(a)(b).
CORAM : AMIT BORKAR, J.
DATED : JANUARY 29, 2024
P.C.:
1. Rule. Rule is made returnable forthwith.
2. The petitioners are challenging order dated 27th November
2015 passed by the Desk Officer, State of Maharashtra cancelling
permission granted under section 36 and section 36A of the
Maharashtra Land Revenue Code, 1966 subject to conditions
stated in order dated 12th September 2013.
3. Respondent No.4 filed an application on 4 th September 2015
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alleging that the petitioners breached condition Nos.1, 4 and other
conditions in order dated 12th September 2013. By the impugned
order, the Desk Officer, State of Maharashtra had cancelled order
dated 12th September 2013.
4. On perusal of order dated 27th November 2015, the Desk
Officer has passed an order without assigning any reason. The
Apex Court in the case of Kranti Associates Private Limited And
Another vs. Masood Ahmed Khan & Others reported in (2010) 9
SCC 496 held that supplying of reasons for a quasi-judicial order is
mandatory and the orders affecting civil rights of the parties
without assigning reasons has been deprecated. Paragraph 47 of
the said judgment reads thus:
"47. Summarizing 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
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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 Harward Law Review
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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, at 562 para
29 and Anya vs. University of Oxford, 2001 EWCA Civ 405
(CA), wherein the Court referred to Article 6 of 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"."
5. On perusal of the order, it appears that the power of the
State Government is exercised by the State Government. Under the
business rules, power to adjudicate under the provisions of the
Maharashtra Land Revenue Code, 1966 is assigned either to the
concerned Minister or to the Secretary depending on the
delegation of power. The Desk Officer has no authority to pass
such order unless such order is issued in the name of Governor of
the State Government which is the mandate of Article 166 of the
Constitution of India. In the absence of impugned order being
supported by reasons or being passed in the name of the Governor
of State, the Desk Officer in his own name has no power to pass
such order.
6. The State Government has filed affidavit-in-reply justifying
cancellation of order. However, in view of judgment of the Apex
Court in the case of Mohinder Singh Gill And Another vs. Chief
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Election Commissioner, New Delhi reported in (1978) 1 SCC 405.
Paragraph 8 reads thus:
"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 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."
7. The quasi-judicial order needs to be supported based on
reasons in the order and not by way of affidavit. Therefore, the
reasons assigned in affidavit-in-reply cannot be considered for the
purpose of confirming validity of the impugned order. Hence,
impugned order cannot be sustained.
8. Hence, following order:
a) The impugned order dated 27th November 2015
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annexed to this writ petition as Exhibit-M is quashed and set
aside.
b) The application of respondent No.4 dated 4th
September 2015 shall be decided by the person having
power to decide such matter under the business rules and
such authority shall pass appropriate orders after giving
opportunity of hearing to both sides and after passing
reasoned order.
9. Rule is made absolute in above terms.
10. With this, the writ petition stands disposed of. No costs.
(AMIT BORKAR, J.)
