Kerala High Court

Mathew Joseph vs State Of Kerala on 24 March, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                   &

             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

    WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                           WA.No.538 OF 2021

AGAINST THE ORDER IN WP(C) 22383/2020(W) OF HIGH COURT OF KERALA


APPELLANTS/PETITIONERS:

      1      MATHEW JOSEPH
             AGED 68 YEARS, S/O.JOSEPH,
             KAVUMKAL HOUSE, KATTAPPANA,
             IDUKKI DIST. - 685 605.

      2      ALICE MATHEW,
             AGED 65 YEARS, W/O.MATHEW JOSEPH
             KAVUMKAL HOUSE, KATTAPPANA,
             IDUKKI DIST. 685 605.

             BY ADVS.
             SRI.GRASHIOUS KURIAKOSE (SR.)
             SRI.RAJU K.MATHEWS

RESPONDENTS/RESPONDENTS:

      1      STATE OF KERALA
             REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY,
             REVENUE DEPARTMENT, THIRUVANANTHAPURAM - 695 001.

      2      DISTRICT COLLECTOR, IDUKKI,
             CIVIL STATION, KUILIMALA,
             PAINAVU, PO IDUKKI - 685 602.

      3      TAHSILDAR
             IDUKKI TALUK,
             IDUKKI COLONY PO - 685 602

      4      VILLAGE OFFICER,
             KATTAPPANA VILLAGE,
             KATTAPPANA PO, IDUKKI DISTRICT - 685 508.
 W.A.No.538 of 2021
                                2


       5       SHAJI JOSEPH
               S/O.JOSEPH, KAVUMKAL HOUSE,
               KATTAPPANA, IDUKKI DIST - 685 508.

       6       ING VYSYA BANK,
               SHEMA BUILDING, M.G. ROAD,
               RAVIPURAM, ERNAKULAM - 682 016,
               REPRESENTED BY ITS CHIEF MANAGER.

               SRI.Y JAFFER KHAN, GP FOR R1 TO R4,
               ADV.SRI.S.SUJIN FOR R5

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.A.No.538 of 2021
                                       3


                                                                          "C.R."
                                 JUDGMENT

Dated this the 24th day of March, 2021

S.Manikumar, C.J.

Being aggrieved by the interim order dated 15.3.2021 in W.P.

(C)No.22383 of 2020, instant writ appeal is filed. Short order impugned

in this appeal is reproduced:

"I have heard Sri.Raju K. Mathews, the learned counsel appearing for the petitioners in W.P.(C) No.22383 of 2020, Sri.S.Sujin, the learned counsel appearing for the petitioner in W.P.(c) No.26461 of 2020 as well as Sri.Jaffar, the learned Government Pleader.

2. From the submissions advanced, it appears that the property comprised in Sy.No.19/1 in Kattapana Village having an extent of 4 cents was mortgaged with the ING Vysya Bank. The specific contention of the learned Government Pleader is that the property over which the petitioners in W.P.(C) No.22383 of 2020 claim possession is the property which was mortgaged with the bank. However, the petitioners have not chosen to implead the ING Vysya Bank as a respondent. I am of the considered opinion that for an effective adjudication of the disputes involved, the ING Vysya Bank is also a necessary party.

In view of the above, the "ING Vysya Bank, Shema Building, M.G.Road, Ravipuram, Ernakulam - 682 016 represented by its Chief Manager" is suo motu impleaded as an additional respondent.

Registry to carry out the amendment to the cause title. Issue urgent notice by speed post to the additional respondent.

The status quo granted on 9.2.2021 will stand vacated. Post after ten days."

2. Facts leading to the filing of the writ appeal are as hereunder:

Father of the 1st petitioner/1st appellant took on lease, as per W.A.No.538 of 2021

Exhibit P2 lease deed, an extent of 4 cents (1.61 Ares) together with

the building thereon and permitted the petitioners/appellants to start

business. Later the property was purchased under Exhibit P3

unregistered sale deed and the building was reconstructed on the

strength of Exhibit P4 exemption granted by the Government and

Exhibit P5 series permit issued by Kattappana Panchayat. Father of

the 1st appellant permitted him to start a business in the newly

constructed building. Accordingly, the appellants have been doing

business in the building in the name and style of 'Kavumkal Silks'.

While so, the 5th respondent, who is the brother of the 1 st

appellant, staked claim over the property on the strength of a

settlement deed, said to have been executed by their mother and a

Thandapper account based on it. The Thandapper account and the

Patta on which it was based, are fabricated by the 5 th respondent in

collusion with some revenue officials. The 1 st appellant therefore

submitted a complaint to the District Collector, Idukki/2 nd respondent

seeking cancellation of the Thandapper account in the name of the 5 th

respondent. The District Collector, Idukki District, 2 nd respondent,

passed Exhibit P6 order ordering cancellation of the Thandapper and

further stating that the fabrication of documents was done with the W.A.No.538 of 2021

knowledge of the 1st appellant and therefore, ordering eviction of the

appellants from the property within 15 days. The Tahsildar, Idukki

Taluk/3rd respondent has informed the appellants that if they do not

vacate the property before 21.10.2020, they would be forcibly

evicted.

Therefore, writ petition was filed and an interim order was

passed on 27.10.2020 directing the parties to maintain status quo.

Respondents filed counter affidavit admitting that the right of the

appellants to get assignment of the land has to be considered under

the Special Rules 1993 and the same could not be done since there

was no Town Survey system and further contended that the forgery

of the Patta was done by the 5 th respondent, with the knowledge of

the appellants. The learned single Judge passed an interim order

vacating the status quo and directed to implead ING Vysya Bank as

additional 6th respondent in the writ petition. But no specific reasons

are mentioned in the interim order for vacating the status quo. Being

aggrieved, instant writ appeal is filed.

3. On the basis of the memorandum of grounds, Mr.Grashious

Kuriakose, learned Senior Counsel for the appellants submitted that

pleadings are completed in the writ petition. W.A.No.538 of 2021

4. At the time of hearing of the writ petition, submission has been

made by the learned Government Pleader that the property over which

the petitioners/appellants claimed possession, the subject matter in W.P.

(C)No.22383 of 2020, has been mortgaged with ING Vysya Bank.

Submission has also been made before the writ court that the petitioners

in W.P.(C) No.22383 of 2020 have not chosen to implead the said Bank

as a party respondent. Thus, solely on the basis of the abovesaid

submission, while arriving at the conclusion that for effective adjudication

of the disputes involved, ING Vysya Bank should be impleaded as a

necessary party, writ court suo motu impleaded the Bank, in exercise of

the powers under Article 226 of the Constitution of India. While doing so,

writ court vacated the order of status quo, which was initially granted on

27.10.2020 and extended periodically, without any reasons.

5. According to the appellants, they are conducting a textile shop

in the building constructed on the land. The Tahsildar, Idukki Taluk,

Idukki District, respondent No.3, in his counter affidavit, has stated that

steps for evicting the appellants are in progress. Thus, when the

appellants are in possession of the subject property and conducting a

textile shop therein, vacating the status quo order dated 27.10.2020,

extended periodically, would pave way for further action towards eviction W.A.No.538 of 2021

of the appellants from the property and in such circumstances, the

appellants would be put to irreparable loss and hardship. It is the further

submission of the learned Senior Counsel for the appellants that on the

pleadings and materials, writ court could have heard the writ petition

itself on its merits.

6. Per contra, Mr.Y.Jaffer Khan, learned Government Pleader

submitted that there is a fraud in the transaction of the property.

However, he fairly admitted that it has to be considered by the writ court

when the writ petition is heard on merits.

7. Heard the learned counsel for the parties and perused the

material available on record.

8. Submission of learned Senior Counsel for the appellants that

the pleadings are compleated in the writ petition, is not disputed. Further

submission of the learned Senior Counsel that taking note of the

averments and submissions made, writ court granted an order of status

quo as early as on 27.10.2020 and extended periodically, is also not

disputed.

9. Perusal of the statement of facts filed along with the writ

petition shows that the petitioners have claimed to be running a textile

shop in the name and style "Kavumkal Silks" in a four storied building W.A.No.538 of 2021

situated in 1.61 Ares of property comprised in Survey No.37/1 of

Kattappana Village and bearing Door No.17/1001, 17/1002 and 17/1003

of Kattappana Municipality. Status quo order has been granted on the

basis of the averments and supporting materials.

10. When the matter came up for hearing on 15.3.2021,

contention has been made by the learned Government Pleader that the

property in which the petitioners claim rights ie. W.P.(C)No.22383 of

2020, has been mortgaged with ING Vysya Bank and that the writ

petitioners have not chosen to implead the said Bank. Taking note of the

above, in exercise of the powers under Article 226 of the Constitution of

India, writ court suo motu has impleaded ING Vysya Bank, Ernakulam as

an additional respondent in the writ petition.

11. From the pleadings, it could be deduced that there is no

dispute over the possession of the property. Even assuming that there is

any fraudulent transaction in the matter of claiming right over the said

property, the same has to be adverted to at the time of hearing of the

writ petition. Status quo has been continuing from 27.10.2020. As rightly

submitted by Mr.Grashious Kuriakose, learned Senior Counsel for the

appellants, we do not find any reason as to why the status quo granted

was vacated.

W.A.No.538 of 2021

12. On more than one occasion, the Hon'ble Supreme Court held

that the reasons are the heartbeat of any decision. Reference can be

made to few decisions:

(i) In M/s.Steel Authority of India Ltd. v. STO, Rourkela-I Circle & Ors. reported in 2008 (5) Supreme 281, the Hon'ble Supreme Court testing the correctness of an order passed by the Assistant Commissioner of Sales Tax against the assessment, at Paragraph 10, held as follows:

"10. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless."

(ii) In Kranti Associates Private Limited and Another v.

Masood Ahmed Khan and Others reported in (2010) 9 SCC 496, wherein, the Hon'ble Supreme Court has considered a catena of decisions, which are extracted hereunder:

"12. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognized a sort of demarcation between administrative orders and quasi- judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak and others v. Union of India and others reported in AIR 1970 SC 150.

13. In Kesava Mills Co. Ltd. and another v. Union of India and others reported in AIR 1973 SC 389, this Court approvingly referred to the opinion of Lord Denning in R v. Gaming Board for Great Britain, ex p Benaim [(1970) 2 WLR 1009] and quoted him as saying "that heresy was scotched in Ridge v. Baldwin, 1964 AC 40".

14. The expression `speaking order' was first coined by Lord Chancellor Earl Cairns in a rather strange context. The Lord Chancellor, while explaining the ambit of the writ of certiorari, referred to orders with errors on the face of the record and W.A.No.538 of 2021

pointed out that an order with errors on its face, is a speaking order. (See pp.1878-97 Vol. 4 Appeal Cases 30 at 40 of the Report)

15. This Court always opined that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the 'inscrutable face of a sphinx'.

16. In Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669, the question of recording reasons came up for consideration in the context of a refusal by Harinagar to transfer, without giving reasons, shares held by Shyam Sunder. Challenging such refusal, the transferee moved the High Court contending, inter alia, that the refusal is mala fide, arbitrary and capricious. The High Court rejected such pleas and the transferee was asked to file a suit. The transferee filed an appeal to the Central Government under Section 111 Clause (3) of Indian Companies Act, 1956 which was dismissed. Thereafter, the son of the original transferee filed another application for transfer of his shares which was similarly refused by the Company. On appeal, the Central Government quashed the resolution passed by the Company and directed the Company to register the transfer. However, in passing the said order, Government did not give any reason. The company challenged the said decision before this Court.

17. The other question which arose in Harinagar (supra) was whether the Central Government, in passing the appellate order acted as a tribunal and is amenable to Article 136 jurisdiction of this Court.

18. Even though in Harinagar (supra) the decision was administrative, this Court insisted on the requirement of recording reason and further held that in exercising appellate powers, the Central Government acted as a tribunal in exercising judicial powers of the State and such exercise is subject to Article 136 jurisdiction of this Court. Such powers, this Court held, cannot be effectively exercised if reasons are not given by the Central Government in support of the order (AIR pp. 1678- 79, Para 23).

19. Again in Bhagat Raja v. Union of India, AIR 1967 SC 1606, the Constitution Bench of this Court examined the question W.A.No.538 of 2021

whether the Central Government was bound to pass a speaking order while dismissing a revision and confirming the order of the State Government in the context of Mines and Minerals (Development and Regulation) Act, 1957, and having regard to the provision of Rule 55 of Mineral Concessions Rules. The Constitution Bench held that in exercising its power of revision under the aforesaid Rule the Central Government acts in a quasi- judicial capacity (See AIR p.1610, para 8). Where the State Government gives a number of reasons some of which are good and some are not, and the Central Government merely endorses the order of the State Government without specifying any reason, this Court, exercising its jurisdiction under Article 136, may find it difficult to ascertain which are the grounds on which Central Government upheld the order of the State Government (See AIR P.1610, para 9). Therefore, this Court insisted on reasons being given for the order.

20. In Mahabir Prasad Santosh Kumar v. State of U.P, AIR 1970 SC 1302, while dealing with U.P. Sugar Dealers' Licensing Order under which the license was cancelled, this Court held that such an order of cancellation is quasi-judicial and must be a speaking one. This Court further held that merely giving an opportunity of hearing is not enough and further pointed out where the order is subject to appeal, the necessity to record reason is even greater. The learned Judges held that the recording of reasons in support of a decision on a disputed claim ensures that the decision is not a result of caprice, whim or fancy but was arrived at after considering the relevant law and that the decision was just. (See SCC p.768, para 7: AIR p. 1304, para 7).

21. In Travancore Rayons Ltd. v. The Union of India, AIR 1971 SC 862, the Court, dealing with the revisional jurisdiction of the Central Government under the then Section 36 of the Central Excises and Salt Act, 1944, held that the Central Government was actually exercising judicial power of the State and in exercising judicial power reasons in support of the order must be disclosed on two grounds. The first is that the person aggrieved gets an opportunity to demonstrate that the reasons are erroneous and secondly, the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power (See SCC p.874, para 11: AIR pp. 865-866, para 11).

22. In Woolcombers of India Ltd. v. Workers Union, AIR 1973 SC W.A.No.538 of 2021

2758, this Court while considering an award under Section 11 of Industrial Disputes Act insisted on the need of giving reasons in support of conclusions in the Award. The Court held that the very requirement of giving reason is to prevent unfairness or arbitrariness in reaching conclusions. The second principle is based on the jurisprudential doctrine that justice should not only be done, it should also appear to be done as well. The learned Judges said that a just but unreasoned conclusion does not appear to be just to those who read the same. Reasoned and just conclusion on the other hand will also have the appearance of justice. The third ground is that such awards are subject to Article 136 jurisdiction of this Court and in the absence of reasons, it is difficult for this Court to ascertain whether the decision is right or wrong (See SCC pp.320-21, para 5 : AIR p. 2761, para 5).

23. In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87, this Court while dealing with the question of selection under Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations held that the expression "reasons for the proposed supersession" should not be mere rubber-stamp reasons. Such reasons must disclose how mind was applied to the subject matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons in such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two (See SCC pp.853-54,paras 27-28: AIR pp.97- 98, paras 27-28).

24. In Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India, AIR 1976 SC 1785, this Court held that it is far too well settled that an authority in making an order in exercise of its quasi-judicial function, must record reasons in support of the order it makes. The learned Judges emphatically said that every quasi- judicial order must be supported by reasons. The rule requiring reasons in support of a quasi- judicial order is, this Court held, as basic as following the principles of natural justice. And the rule must be observed in its proper spirit. A mere pretence of compliance would not satisfy the requirement of law (See SCC p.986, para 6 : AIR p.1789, para

6).

25. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, which W.A.No.538 of 2021

is a decision of great jurisprudence significance in our Constitutional law, Beg, C.J., in a concurring but different opinion held that an order impounding a passport is a quasi-judicial decision (SCC p.311, Para 34,: AIR p. 612, para 34). The learned Chief Justice also held, when an administrative action involving any deprivation of or restriction on fundamental rights is taken, the authorities must see that justice is not only done but manifestly appears to be done as well. This principle would obviously demand disclosure of reasons for the decision.

26. Y.V. Chandrachud, J. (as His Lordship then was) in a concurring but a separate opinion in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 also held that refusal to disclose reasons for impounding a passport is an exercise of an exceptional nature and is to be done very sparingly and only when it is fully justified by the exigencies of an uncommon situation. The learned Judge further held that law cannot permit any exercise of power by an executive to keep the reasons undisclosed if the only motive for doing so is to keep the reasons away from judicial scrutiny. (See SCC p.317, para 39: AIR p.613, para 39).

27. In Rama Varma Bharathan Thampuran v. State of Kerala, AIR 1979 SC 1918, V.R. Krishna Iyer, J. speaking for a three-Judge Bench held that the functioning of the Board was quasi-judicial in character. One of the attributes of quasi- judicial functioning is the recording of reasons in support of decisions taken and the other requirement is following the principles of natural justice. Learned Judge held that natural justice requires reasons to be written for the conclusions made (See SCC p.788, para 14 : AIR p. 1922, para 14).

28. In Gurdial Singh Fijji v. State of Punjab, (1979) 2 SCC 368, this Court, dealing with a service matter, relying on the ratio in Capoor (supra), held that "rubber-stamp reason" is not enough and virtually quoted the observation in Capoor (supra) to the extent that: (Capoor case, SCC p.854, para 28) "28. ...Reasons are the links between the materials on which certain conclusions are based and the actual conclusions." (See AiR p.377 para 18).

29. In a Constitution Bench decision of this Court in H.H. Shri.Swamiji of Shri Amar Mutt v. Commissioner, Hindu Religious and Charitable Endowments Dept., AIR 1980 SC 1, while giving W.A.No.538 of 2021

the majority judgment Y.V. Chandrachud, C.J. referred to (SCC p.658, para 29) Broom's Legal Maxims (1939 Edition, page 97) where the principle in Latin runs as follows:

"Cessante Ratione Legis Cessat Ipsa Lex"

30. The English version of the said principle given by the Chief Justice is that: (H.H. Shri.Swamiji case, SCC p.658, para 29)

"29. ... reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself." (See AIR p.11, para 29)

31. In Bombay Oil Industries (P). Ltd. v. Union of India, AIR 1984 SC 160, this Court held that while disposing of applications under Monopolies and Restrictive Trade Practices Act the duty of the Government is to give reasons for its order. This court made it very clear that the faith of the people in administrative tribunals can be sustained only if the tribunals act fairly and dispose of the matters before them by well considered orders. In saying so, this Court relied on its previous decisions in Capoor (supra) and Siemens Engineering (supra), discussed above.

32. In Ram Chander v. Union of India, AIR 1986 SC 1173, this Court was dealing with the appellate provisions under the Railway Servants (Discipline and Appeal) Rules, 1968 condemned the mechanical way of dismissal of appeal in the context of requirement of Rule 22(2) of the aforesaid Rules. This Court held that the word "consider" occurring in Rule 22(2) must mean the Railway Board shall duly apply its mind and give reasons for its decision. The learned Judges held that the duty to give reason is an incident of the judicial process and emphasized that in discharging quasi-judicial functions the appellate authority must act in accordance with natural justice and give reasons for its decision (SCC pp.106-07, Para 4: AIR p. 1176, para 4).

33. In Star Enterprises v. City and Industrial Development Corporation of Maharashtra Ltd., (1990) 3 SCC 280, a three- Judge Bench of this Court held that in the present day set up judicial review of administrative action has become expansive and is becoming wider day by day and the State has to justify its action in various field of public law. All these necessitate recording of reason for executive actions including the rejection of the highest offer. This Court held that disclosure of reasons in W.A.No.538 of 2021

matters of such rejection provides an opportunity for an objective review both by superior administrative heads and for judicial process and opined that such reasons should be communicated unless there are specific justification for not doing so (see SCC pp. 284-285, Para 10).

34. In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi (1991) 2 SCC 716, this Court held that even in domestic enquiry if the facts are not in dispute non-recording of reason may not be violative of the principles of natural justice but where facts are disputed necessarily the authority or the enquiry officer, on consideration of the materials on record, should record reasons in support of the conclusion reached (see SCC pp 738-739, para 22)

35. In M.L. Jaggi v. Mahanagar Telephones Nigam Limited, (1996) 3 SCC 119, this Court dealt with an award under Section 7 of the Telegraph Act and held that since the said award affects public interest, reasons must be recorded in the award. It was also held that such reasons are to be recorded so that it enables the High Court to exercise its power of judicial review on the validity of the award. (see SCC p 123, para 8).

36. In Charan Singh v. Healing Touch Hospital, AIR 2000 SC 3138, a three-Judge Bench of this Court, dealing with a grievance under CP Act, held that the authorities under the Act exercise quasi-judicial powers for redressal of consumer disputes and it is, therefore, imperative that such a body should arrive at conclusions based on reasons. This Court held that the said Act, being one of the benevolent pieces of legislation, is intended to protect a large body of consumers from exploitation as the said Act provides for an alternative mode for consumer justice by the process of a summary trial. The powers which are exercised are definitely quasi-judicial in nature and in such a situation the conclusions must be based on reasons and held that requirement of recording reasons is "too obvious to be reiterated and needs no emphasizing". (See SCC p.673 Para 11, AIR p. 3141 para 11 of the report)

13. In the light of the above discussions and decisions, we are

inclined to interfere with the interim order dated 15.3.2021 in W.P. W.A.No.538 of 2021

(C)No.22383 of 2020, insofar as vacating of status quo order is

concerned. Having regard to the submission of the learned Senior

Counsel for the appellants that they are in continuous possession of the

subject property in W.P.(C)No.22383 of 2020, order of status quo is

extended. Writ court is requested to expedite the disposal of the writ

petition.

Writ appeal is allowed.

Pending interlocutory applications, if any, shall stand closed.

Sd/-

S.Manikumar Chief Justice