Mahezbin Mohammad Arif Kureshi vs State Of Gujarat
2021 Latest Caselaw 17254 Guj

     C/SCA/10640/2021                               JUDGMENT DATED: 16/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 10640 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER                           Sd/-

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1     Whether Reporters of Local Papers may be allowed                   No
      to see the judgment ?

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy                  No
      of the judgment ?

4     Whether this case involves a substantial question                  No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        MAHEZBIN MOHAMMAD ARIF KURESHI
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR HARSHADRAY A DAVE(3461) for the Petitioner(s) No. 1,2,3
MR JB DASTOOR(239) for the Respondent(s) No. 3,4,5,6,7
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1, 2
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                                Date : 16/11/2021

                                ORAL JUDGMENT

1. By filing this petition, the petitioners have mainly prayed to quash and set aside order dated 17.6.2021 passed by respondent no.2 at Annexure to the petition and declare the same as null and void and also prayed to remand the matter.

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2. It is the case of the petitioners that they are owners of property bearing City Survey No.893, 894, 895 and 896/A/1 situated at Shahpur Ward-1 of Taluka City, District Ahmedabad. It is stated that out of total land of 206.06 sq.mtrs. of Survey No.896/A/1, the petitioners sold land admeasuring 32.60 sq.mtrs. in favour of respondent nos.5 to 7 in 1994 and possession was handed over to them. It is the case of the petitioners that later on respondent nos.5 to 7 sold said land to respondent nos.3 and 4. Respondent nos.3 and 4 want to construct flat in the said land and for that they are trying the grab land of the road, which is in the property of the petitioners. Therefore, the petitioners filed Civil Suit No.1608 of 2019 seeking declaration and permanent injunction against respondent no.3 and 4. The petitioners state that during the pendency of said suit, respondent nos.3 and 4 approached city Survey Superintendent vide application dated 26.8.2020 for measurement of the property. Said application was forwarded to respondent no.2 for further action and the petitioners have filed their reply. However, due to second wave of Covid-19 the matter could not proceed further. Thereafter, respondent no.2 fixed hearing of the application on 16.6.2021 vide notice dated 3.6.2021. The petitioners state that this notice was received by them on 18.6.2021 and when the petitioners approached respondent no.2, they were informed that order is passed on 17.6.2021. It is the case of the petitioners that notice dated 3.6.2021 was posted by office of respondent no.2 on 16.6.2021 and it was received by the petitioners on 18.6.2021. Therefore, the petitioners have filed present petition with aforesaid prayer.

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3. Heard learned advocate Mr.Harshadrai Dave for the petitioners, learned AGP, Mr.Nikunj Kanara for the State and learned advocate Mr.Dastoor for private respondents.

4. Learned advocate Mr.Dave for the petitioners has submitted that the matter needs to be remanded back to the concerned authority as no proper opportunity of being heard is afforded to the petitioners. He has submitted that the authority has not entered into the merits, as it can be gathered from the documentary evidence that when the matter was posted for hearing, notice thereof was issued very late and it was received by the petitioners after passing of the impugned order. He has referred to the documentary evidence at page 53 of the petition to substantiate his submission that the notice was received late and no proper opportunity of being heard was given to the petitioners and, therefore, solely on this ground the matter may be remanded back to the concerned authority.

5. Per contra, learned advocate Mr.Dastoor for the private respondents has submitted that the authority has provided ample opportunity to the petitioners herein and even as per the suit filed by the petitioners, property in question belongs to the private respondents and, therefore, the impugned order is in no way affecting the rights of the present petitioners. While reading the impugned order, Mr.Dastoor has submitted that as reflected in the order the arguments of both the sides were heard earlier and thereafter the matter was kept for report from the authority and notice was also issued to the petitioners to remain present but they did not remain present before the authority. He has submitted that since the opportunity has

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been given to the petitioners and there is an alternative remedy available to the petitioners, this Court may not exercise its extraordinary jurisdiction. Mr.Dastoor, learned advocate for the private respondents has submitted that he relies upon one judgment in the case of Canara Bank v. V.K.Awasthy reported in (2005) 6 SCC 321 for the proposition that there is no prejudice caused to the petitioner herein due to passing of the order by the competent authority. In view of all these, he has prayed to dismiss the petition.

6. Learned AGP has submitted that considering the facts of the case appropriate order may be passed.

7. It is well settled that existence of alternative remedy is required to be taken into consideration by the Court while entertaining petition under Article 226 of the Constitution of India. Generally, when there is an alternative efficacious remedy available, petition under Article 226 of the Constitution of India may not be entertained. However, there may be cases wherein the action of the authority is without jurisdiction and it appears to be ab initio void, in such cases, the High Court under Article 226 can exercise powers of granting appropriate relief and there is no need to relegate the petitioners to avail alternative remedy.

8. So far as decision relied upon by Mr.Dastoor is concerned, i.e. in the case of Canara Bank v. V.K.Awasthy reported in (2005) 6 SCC 321, it is observed as under:-

"10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes

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between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the ``Magna Carta''. The classic exposition of Sir Edward Coke of natural justice requires to ``vocate interrogate and adjudicate''. In the celebrated case of Cooper v. Wandsworth Board of Works, (1963) 143 ER 414, the principle was thus stated:

"Even God did not pass a sentence upon Adam, before he was called upon to make his defence. ``Adam'' says God, ``where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat''.

Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

11. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi- judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

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12. What is meant by the term `principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board, (1914) 1 KB 160 at p.199:83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Sanckman, (1943) AC 627: [1948] 2 All ER 337, Lord Wright observed that it was not desirable to attempt `to force it into any procusteam bed' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give `a full and fair opportunity', to every party of being heard.

..........

14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression `civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.

..........

16. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They

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constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is `nemo judex in causa sua' or `nemo debet esse judex in propria causa sua' as stated in (1605) 12 Co.Rep.114 that is, `no man shall be a judge in his own cause' Coke used the form `aliquis non debet esse judex in propria causa quia non potest esse judex at pars. (Co.Litt. 1418), that is, `no man ought to be a judge in his own case' because he cannot act as Judge and at the same time be a party' The form `nemo potest esse simul actor et judex', that is, `no one can be at once suitor and judge' is also at times used. The second rule is `audi alteram partem', that is, `hear the other side' At times and particularly in continental countries, the form `audietur at altera pars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely `qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, `he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, `justice should not only be done but should manifestly be seen to be done' Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.

17. What is known as `useless formality theory' has received consideration of this Court in M.C. Mehta v. Union of India, [1999] 6 SCC 237. It was observed as under:

"22. Before we go into the final aspect of this contention, we would like to state that case relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of `real substance' or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed (See Malloch

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v. Aberdeen Corpn., [1971] 2 All ER 1278, HL (per Lord Reid and Lord Wilberforce), Glynn v. Keele University, [1971] 2 All ER 89; Cinnamond v. British Airports Authority, [1980] 2 All ER 368, CA and other cases where such a view has been held. The latest addition to this view is R. v. Ealing Magistrates. Court, ex p. Fannaran, (1996) 8 Admn. LR at p.358) See de Smith, Suppl. P.89 (1998) where Straughton, L.J. held that there must be `demonstrable beyond doubt. that the result would have been different. Lord Woolf in Lloyd v. McMohan, [1987] 1 All ER 1118, CA has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant, (1959) NZLR 1014 however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is `real likelihood-not certainty- of prejudice.' On the other hand, Garner Administrative Law (8th Edn. 1996. pp.271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin, (1964) AC 40: [1963] 2 All ER 66, HL), Megarry, J. in John v. Rees, [1969] 2 All ER 274 stating that there are always `open and shut cases. and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J has said that the `useless formality theory' is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that `convenience and justice are often not on speaking terms' More recently, Lord Bingham has deprecated the `useless formality theory' in R. v. Chief Constable of the Thames Valley Police Forces, ex p. Cotton (1990 IRLR 344) by giving six reasons (see also his article `Should Public Law Remedies be Discretionary?" 1991 PL. p.64). A detailed and emphatic criticism of the `useless formality theory.

has been made much earlier in `Natural Justice, Substance or Shadow' by Prof. D.H. Clark of Canada (see 1975 PL.pp.27-63) contending that Malloch (supra) and Glynn (supra) were wrongly decided. Foulkes (Administrative Law, 8th Edn. 1996, p.323), Craig (Administrative Law, 3rd Edn. P.596) and others say that the court cannot prejudge what is to be decided by

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the decision-making authority. De Smith (5th Edn. 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn. 1994, pp.526-530) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a `real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their `discretion', refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, [1996] 3 SCC 364 and Rajendra Singh v. State of M.P., [1996] 5 SCC 460 that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.

23. We do not propose to express any opinion on the correctness or otherwise of the `useless formality theory' and leave the matter for decision in an appropriate case, inasmuch as the case before us, `admitted and indisputable' facts show that grant of a writ will be in vain as pointed by Chinnappa Reddy, J."

9. Having heard learned advocates for the parties, coupled with the material placed on record, it clearly transpires that the impugned order was passed on 17.6.2021. It also reveals from the documents at page 53 that notice for hearing though

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stated to be issued on 3.6.2021, it was posted on 16.6.2021. Said notice was served upon the present petitioners on 18.6.2021. Thus, admittedly when the proceedings were kept for hearing, no proper notice was served upon the petitioners to remain present and in their absence, the impugned order has been passed. Not only that the notice has been served upon the petitioners after passing of the impugned order. In view of these facts, it is clear that the principles of natural justice have not been followed in the present case, as the notice was served upon the petitioner after passing of the order. This is clearly a breach of principles of natural justice and, therefore, without entering into the merits of the case, this matter is remanded back to the concerned authority to decide the same afresh, after providing an opportunity of being heard to both the sides.

10. In view of above, impugned order dated 17.6.2021 is hereby quashed and set aside and the concerned authority is hereby directed to decide the same afresh after providing an opportunity of being heard to both the sides. Such exercise may be concluded as early as possible and preferably within a period of three months from the date of receipt of copy of this order.

11. With these observations and direction, present petition is allowed. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK