Samir Sharma & Anr. vs Union Of India And Anr.
2016 Latest Caselaw 4886 Del

$~21
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                 Judgment delivered on: 27.07.2016

+       W.P.(C) 6109/2015 & CM No.11111/2015 (stay)

        SAMIR SHARMA & ANR.                                    ..... Petitioners

                             versus

        UNION OF INDIA AND ANR.                                ..... Respondents
Advocates who appeared in this case:

For the Petitioners   :      Mr. Gagan Gupta, Advocate.
For the Respondents   :      Mr. Manish Mohan, CGSC for UOI.

CORAM:
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                                       JUDGMENT

27.07.2016 SANJEEV SACHDEVA, J (ORAL)

1. The petitioners impugn order dated 21.04.2015, passed by Sh. Rajesh Jaiswal, Deputy Land and Development Officer (hereinafter referred to as the Deputy L.& D.O.).

2. The contention of the petitioners is that, in WP(C) 5781/2014 titled Samir Sharma & Anr. v. Union of India & Anr., which was a petition filed by the present petitioner, by order dated 05.09.2014, this Court had directed that the said writ petition be treated as a representation by the respondents. The Court directed the concerned Officer to pass a speaking order after affording the petitioners an opportunity of being heard. Liberty was granted

to the petitioners to avail of appropriate remedies as available in law in case the petitioners were aggrieved by the order.

3. The impugned order, herein, i.e. order dated 21.04.2015 is the order passed consequent to the directions dated 05.09.2014 of this Court in WP(C) 5781/2014. In fact, the impugned order itself records under the heading subject as "compliance of orders dated 05.09.2014".

4. Learned counsel for the petitioners submits that consequent to order dated 05.09.2014, the hearing was granted by Mr. Sumit Gakhar, the erstwhile Deputy L. & D.O. on 11.09.2014. The petitioners were asked to file written synopsis and relevant documents which were filed.

5. It is submitted that Mr. Sumit Gakhar, Deputy L. & D.O., who had heard the petitioner, did not pass any order on the representation. However, Mr. Rajesh Jaiswal Deputy L. & D.O. passed the impugned order.

6. It is contended that the Officer who heard the petitioner in terms of the directions of this Court, did not decide the representation and the Officer who decided the representation, did not afford an opportunity of hearing to the petitioners. Reliance is placed on the decision of the Supreme Court in Automotive Tyre Manufactures Association vs. The Designated Authority & Ors.: 2011 (1) Scale pg 149 and a decision of a Division Bench of this court in DCM Limited vs. Municipal Corporation of Delhi: AIR 1998 Delhi 348.

7. In response to the above contentions raised by the petitioners in the petition, the respondents, in their counter affidavit, have stated that

consequent upon the routine transfer of the then Deputy L.& D.O. - Mr. Sumit Gakhar, the work of the area in which the property in question was situated was being looked after by Sh. Rajesh Jaiswal, the Deputy L. & D.O. It is stated that there is nothing wrong in passing of the speaking order by him.

8. The Supreme Court in Automotive Tyre Manufacturers Association (Supra) has held as under:

"59. ..........A personal hearing enables the authority concerned to watch the demeanour of the witnesses etc. and also clear up his doubts during the course of the arguments. Moreover, it was also observed in Gullapalli (supra), if one person hears and other decides, then personal hearing becomes an empty formality................"

9. The Division Bench of this Court in DCM Limited (Supra) held as under:

"26.......The importance of oral hearing cannot be nullified by saying that the authority has considered all the submissions contained in the written arguments. Oral hearing generates discussion and leads to clarification of doubt, if any, which the authority while has to decide might be having in its mind. The importance of benefit of a healthy discussion can never be over-emphasised. It is a basic tenet of law by which we are governed. If what has been urged on behalf of the respondent was to be accepted, it would be as good as saying that no oral hearing is required in judicial or quasi-judicial matter."

10. By order dated 05.09.2014 in WP(C) 5781/2014, this Court had

specifically directed that the petitioner be granted an opportunity of hearing and then a speaking order be passed.

11. The Officer, who had heard the petitioner, should have decided the representation. Personal hearing is not an empty formality, The Officer, who decided the representation, did not grant an opportunity of hearing. This is clearly impermissible. Personal hearing enables the authority to clear up his doubts during the course of the arguments. The opportunity of oral hearing cannot be nullified by deciding on the basis of written arguments. As held in DCM Limited (Supra), oral hearing generates discussion and leads to clarification of doubt, if any, which the authority while has to decide might be having in its mind. Clearly in the present case, the opportunity of hearing has been reduced to a mere empty formality.

12. In view of the above, the impugned order is set aside. The matter is remitted to the competent authority to decide the representation of the petitioners afresh after granting an opportunity of hearing. The respondents shall comply with the directions contained in order dated 05.09.2014 in WP(C) 5781/2014. The respondents shall decide the representation within a period of three months from today. The petitioners would be at liberty to avail of such remedies as may be available in law in case the petitioner is aggrieved by the decision.

13. The writ petition is disposed of accordingly. There shall be no orders as to costs.

SANJEEV SACHDEVA, J JULY 27, 2016/st