Nitin Choudhary vs The State Of Madhya Pradesh
2021 Latest Caselaw 6060 MP

      The High Court Of Madhya Pradesh

                               WP-11892-2021
           (NITIN CHOUDHARY Vs THE STATE OF MADHYA PRADESH AND OTHERS)




Indore, Dated : 27-09-2021
      Heard through Video Conferencing.

      Shri Shekhar Sharma, learned counsel for the petitioner.
      Shri Vivek Dalal, learned AAG for the respondent/State.

With the consent, finally heard.

This petition filed under Article 226 of Constitution of India assails the impugned order dated 22/02/2021 passed by respondent no. 2.

2. In short, the case of the petitioner is that respondent no. 4 on 02/07/2019 granted permission to respondent nos. 6 & 7 for construction of shopping mall at Juni Indore, Indore. On 30/07/2020, respondent no. 5 has granted building permission to respondent nos. 6 &

7. In turn, on 25/11/2020, respondent nos. 6 & 7 executed an agreement with the petitioner and issued work order for digging land for the plinth and basement purpose. The petitioner started digging on the construction site on 07/01/2021 and substantial quantity of earth ( murum) has also been removed. Respondent no. 3 visited the construction site on 07/01/2021 and registered the case of unauthorized mining against the petitioner as well as respondent nos. 6 & 7. The petitioner's vehicle and machines used for the said work have been seized. On the basis of a report of respondent no. 3 dated 01/02/2021, respondent no. 2 issued a show-cause notice to the petitioner. The petitioner promptly filed his reply on 12/02/2021 and contended that he has not indulged in any mining activity and therefore, the proceedings run contrary to the Madhya Pradesh Minor Minerals Rules, 1996. Respondent no. 2, without dealing with the objection of jurisdiction raised in the reply, passed the order impugned dated 22/02/2021, which is subject matter of challenge in this petition.

3. Shri Shekhar Sharma, learned counsel for the petitioner assailed the impugned order and criticized the decision making process adopted by the respondent. It is submitted that in the show-cause notice itself, a decision was already taken to punish to the petitioner and therefore, opportunity given thereafter was an ante-formality and runs contrary to principles of natural justice. The basic objection raised by the petitioner regarding jurisdiction/ competence, which goes to the root of the matter, has not been considered. The principles laid down by Hon'ble Supreme Court in the case of Promoters and Builders Associations of Pune Vs. State of Maharashtra reported in 2015 (12) SCC 736 are grossly violated.

4. Sounding a contra-note, Shri Vivek Dalal, learned AAG supported the impugned order and urged that the petitioner was put to show-cause notice dated 22/02/2021, his reply was obtained and thereafter, a reasoned order was passed. He placed reliance on the communication dated 13/11/2020, whereby statement was made by private respondent to the mining officer, Municipal Corroboration, Indore.

5. Parties confined their arguments to the extent indicated above.

6. We have heard learned counsel for the parties at length and perused the records.

7. In a matter of this nature, this Court is obliged to examine the decision making process. If decision making process is in accordance with fair play and principles of natural justice, ordinarily, decision is not jettisoned by this Court. Thus, the impugned action needs to be examined on the touchstone of fairness and propriety in decision making process. Show-cause notice dated 02/02/2021 shows that while putting the petitioner to notice and directing him to remain present on 05/02/2021 along with relevant documents, in the notice itself, the petitioner was found guilty and punishment of fine of Rs. 3,73,68,000/- is imposed on the petitioner. Thus, this procedure adopted by the respondent is totally unknown to the principles of natural justice. Before permitting the petitioner to file reply and without considering the reply, a decision to impose fine was already taken, which cannot be countenanced. Apart from this, the petitioner's reply running in five pages shows that the petitioner has raised various objections including the objection regarding maintainability of the proceedings and competence of the Authority. The impugned order dated 22/02/2021 ( Annexure-P/10) does not deal with all such objections, which should have been dealt with by the Competent Authority.

8. In the opinion of this Court, issuance of show-cause notice, obtaining reply and taking decision thereupon is neither a mechanical exercise, nor should be an empty public relation exercise. If an adverse order is to be passed, which entails civil consequences, the principles of natural justice must be followed scrupulously. In the impugned order dated 22/02/2021, no reasons are assigned, as to why the objection regarding competence taken by the petitioner was not trustworthy. The reasons are held to be heart beat of conclusions. In absence of reasons, conclusion cannot sustain judicial scrutiny.

9. Hon'ble Supreme Court in Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496 emphasized the need of assigning reasons n administrative, quasi judicial and judicial orders. The relevant portion reads as under:-

"47. Summarising 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 quasijudicial 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 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 Harvard Law Review 731- 7] .)

(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] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the 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".

(emphasis supplied)

10. If the impugned order dated 22/02/2021 is examined on the anvil of principles laid down in the case of Kranti Associates (supra), the order cannot sustain judicial scrutiny. Since the decision making process is found to be erroneous, the impugned order dated 22/02/2021 is set aside. Liberty is reserved to the respondent/s to issue afresh notice in accordance with law and proceed therefrom afresh.

11, With the aforesaid, present petition stands disposed of without expressing any opinion on merits of the case.

C c as per rules.

                             (SUJOY PAUL )                            ( ANIL VERMA)
                               JUDGE                                      JUDGE

Digitally signed by AMOL N
MAHANAG
Date: 2021.09.27 17:23:34
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