Tapan Biswas vs The State Of Madhya Pradesh
2022 Latest Caselaw 5603 MP

                                                                            1
                                                    IN THE HIGH COURT OF MADHYA PRADESH
                                                                 AT JABALPUR
                                                                         BEFORE
                                                           HON'BLE SHRI JUSTICE VISHAL MISHRA
                                                                   ON THE 19th OF APRIL, 2022

                                                            WRIT PETITION No. 25475 of 2021

                                               Between:-
                                               TAPAN BISWAS S/O SHRI HARDHAN BISWAS,
                                               AGED ABOUT 50 YEARS, R/O CHOPNA 1 TEHSIL
                                               GHORADONGRI DISTT. BETUL M.P. (MADHYA
                                               PRADESH)

                                                                                                              .....PETITIONER
                                               (BY SHRI K.R. PATEL, ADVOCATE)

                                               AND

                                       1.      THE STATE OF MADHYA PRADESH THR.
                                               SECRETARY DEPARTMENT OF MINES VALLABH
                                               BHAWAN BHOPAL (MADHYA PRADESH)

                                       2.      SUB DIVISIONAL OFFICER (REVENUE) SHAHPUR
                                               DIST.BETUL (MADHYA PRADESH)

                                       3.      THE COLLECTOR BETUL DISTT.BETUL (MADHYA
                                               PRADESH)

                                       4.      A D D I . C O M M I S S I O N E R HOSHANGABAD
                                               NARMADAPURAM DIVISION (MADHYA PRADESH)

                                       5.      REVENUE BOARD THROUGH                  PRESIDENT MP
                                               GWALIOR (MADHYA PRADESH)

                                       6.      THE MINES OFFICER B ETUL SCHOOL MOTHER
                                               GOVT. PRIMARY SCHOOL GUDHA ANJANIYA
                                               DISTT. MANDLA (MADHYA PRADESH)

                                                                                                            .....RESPONDENTS
                                               (BY SHRI SUDEEP CHATTERJEE, GOVERNMENT ADVOCATE)

                                             T h is petition coming on for direction this day, the court passed the
                                       following:
                                                                             ORDER

With the consent of the parties the matter is finally heard. The present petition was heard and disposed of by this Court vide order dated 09.03.2022; whereby, the petition was dismissed. On a writ appeal being filed bearing Writ Appeal No.276/2022 in the name of Tapan Biswas Vs. The State Signature Not Verified SAN of Madhya Pradesh and Others, the Division Bench of this Court vide order dated

Digitally signed by TAJAMMUL HUSSAIN KHAN 21.03.2022 has remanded the matter for reconsideration by the Single Judge and Date: 2022.04.21 14:42:53 IST

further provided a protection of ten days' to the petitioner directing the respondents not to take any coercive steps against the petitioner. In pursuance to the same, the petition has been listed for hearing before this Court.

Challenge being made to the orders dated 11.09.2020 (Annexure P-1),

12.12.2019 (Annexure P-2), 07.09.2017 (Annexure P-3), 30.03.2017 (Annexure P-

4) and 20.11.2015 (Annexure P-5), passed by the respondents; whereby, while cancelling the Patta of the petitioner for the lease, the authorities have also imposed a penalty to the tune of Rs.3,95,77,600/- upon the petitioner.

It is argued that the matter was pending consideration before the authorities and on 22.12.2015, the case was extended because the Presiding Officer was busy in some other work. On 13.01.2016, again the case was extended as the Presiding Officer was on work. Thereafter, the matter was listed for hearing on 07.02.2016, the petitioner could not keep himself present for the reasons before the authorities. The authorities have heard the arguments in absence of the petitioner and has passed an ex-parte order. Immediately, thereafter, an application for recalling the ex-parte order was filed and the same was rejected on 19.02.2016. It is submitted that the petitioner is not willing to challenge the order passed by the Collector, Betul dated 27.09.2012 to the extent of cancellation of his Patta, but he is affected by the imposition of the penalty by the authorities i.e. the Sub Divisional Officer on 20.11.2015 to the tune of Rs.3,95,77,600/-. It is argued that at-least an opportunity of hearing should be afforded to the petitioner. Although notice was issued to the petitioner to which he has already filed a detailed reply but the impugned order does not reflect any consideration of the reply submitted by the petitioner. Only the order passed by the authority is based upon the inspection report which is submitted by the Mining Officer on 27.04.2012 and on that basis the penalty has been imposed. It is summited that the order passed by the Sub Divisional Officer has been upheld by the superior authorities in appeal and revision but the actual contention raised by the petitioner has not been taken by the authorities. The orders impugned suffer from the principle of natural justice and fair play.

Signature Not Verified Imposition of a huge penalty upon the petitioner without even giving opportunity of SAN

Digitally signed by TAJAMMUL HUSSAIN hearing to the petitioner is per se illegal and is contrary to the dictum of Hon'ble KHAN Date: 2022.04.21 14:42:53 IST

Supreme Court in the case of M/s Kranti Associates Pvt. Ltd. and Another Vs.

Masood Ahmed, reported in (2010) 9 SCC 496; wherein, the Hon'ble Supreme Court has framed certain guidelines to be followed even by the quasi judicial authorities and they are required to pass by a self contained reasoned order providing opportunity of hearing to the parties.

In the present case, the order dated 20.11.2015 reflects the reasons for imposition of penalty but the reply filed by the petitioner has not been taken into consideration by the learned Sub Divisional Officer and he has also been declared ex-parte on remaining absent for one day. In such circumstances, the orders are

illegal and has prayed for quashment of the impugned orders passed by the authorities.

Per contra, counsel appearing for the State has vehemently opposed the contentions and has supported the impugned orders and has argued that the opportunity of hearing was provided to the petitioner. He was issued a show-cause notice to which a reply has been filed by the petitioner. The petitioner marked his presence before the learned Sub Divisional Officer on earlier occasions, but deliberately has not appeared on the day when the matter was taken up for final arguments and has remained ex-parte. The Authorities placing reliance upon the enquiry report submitted by the Mining Officer and also the reply filed by the petitioner has passed the impugned order. The petitioner has also admitted the fact that he has done illegal mining beyond the area which was allotted to the petitioner; thus, the penalty was rightly been imposed upon the petitioner.

A specific question was put to the counsel for the respondent to point out from the impugned order passed by the Sub Divisional Officer that whether the reply which has been submitted by the petitioner was ever taken into consideration. He fairly submits that the impugned order does not reflect the consideration of the reply filed by the petitioner, but he submits that the order impugned is based upon the enquiry done by the Mining Officer.

Heard the learned counsels for the parties and perused the record. From the perusal of the record, undisputed facts that Patta which was granted to the petitioner for mining has been cancelled by the Collector vide order Signature Not Verified SAN

Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2022.04.21 14:42:53 IST dated 27.09.2012 and the Collector has further directed for inquiry into the matter

and imposition of penalty. The petitioner has not challenged the cancellation of Patta as is mentioned before this Court today but is only affected by imposition of penalty without affording any opportunity of hearing to him.

The petitioner has marked his presence before the learned Sub Divisional Officer (Revenue) and has filed his reply, but he could not keep himself present before the Court at the time of final hearing of the matter and he was declared ex- parte in the order impugned being passed against the petitioner in ex-parte proceedings. An application for setting aside the ex-parte proceedings was also rejected vide order dated 19.02.2016. The order passed by the Sub Divisional Officer has been affirmed upto the Board of Revenue. The impugned order does not reflect any consideration of the reply filed by the petitioner. It is only based upon the reports submitted by the Mining Officer. The Hon'ble Supreme Court in the case of M/s Kranti Associates Pvt. Ltd. and Another Vs. Masood Ahmed, reported in 2010 9 SCC 496 has held as under:-

"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.

Signature Not Verified

(f) Reasons have virtually become as indispensable a SAN

Digitally signed by TAJAMMUL HUSSAIN component of a decision making process as observing KHAN Date: 2022.04.21 14:42:53 IST

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 life blood 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 731-737).

(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 Signature Not Verified SAN

Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2022.04.21 14:42:53 IST Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29

and Anya vs. University of Oxford, 2001 EWCA Civ 405, 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"."

From the perusal of the directions given by the Hon'ble Supreme Court, it is apparently clear that an opportunity of hearing should have been granted by the authorities to the petitioner when the matter is arising out of a civil consequence. If the order is having any civil consequence then at-least, the reply which has been filed by the petitioner should have been considered and reasoned order should have been passed by the authorities. Although the impugned order is reflecting the reasons which is based upon the inquiry report submitted by the Mining Officer, but the fact remains that the order is silent and does not reflect any consideration of the reply filed by the petitioner. The order is passed in ex-parte proceedings and no opportunity of hearing was granted to the petitioner. In such circumstances, the order impugned is per se illegal and is contrary to a dictum of the Hon'ble Supreme Court in the case of M/s Kranti Associates Pvt. Ltd. (supra). Accordingly, the orders impugned are hereby quashed.

Matter is relegated back to the learned Sub Divisional Officer for reconsideration of the case and directed to provide opportunity of hearing to the petitioner prior to passing the order. The aforesaid exercise be completed within a period of 90 days from the date of receipt of certified copy of this order.

With the aforesaid observations, petition stands allowed and disposed of. No order as to cost.

Certified copy as per rules.

Signature Not Verified SAN

(VISHAL MISHRA) Digitally signed by TAJAMMUL HUSSAIN KHAN JUDGE Date: 2022.04.21 14:42:53 IST taj

Signature Not Verified SAN

Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2022.04.21 14:42:53 IST