Orissa High Court
Subash Ch. Bhanja vs Sarpanch on 4 November, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.13421of 2009
Subash Ch. Bhanja ..... Petitioner
Mr. H.S. Mishra, Advocate
-versus-
Sarpanch, Jamgaon Gram ..... Opposite Parties
Panchayat & Ors. Mr. A. Tripathy, AGA
CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
04.11.2024
Order No.16
1. This matter is taken up through hybrid mode.
2.Heard Mr. H.S. Mishra, learned counsel appearing for the
Petitioner and Mr. A. Tripathy, learned Addl. Govt. Advocate
appearing for the Opp. Parties.
3. Petitioner has filed the present writ petition inter alia challenging
order dtd.05.04.2008 so passed by Opp. Party No. 4 under Annexure-
8, further confirmed by the appellate authority-Opp. Party No. 5 vide
order dtd.26.08.2009 under Annexure-12.
4. It is the main contention of the learned counsel appearing for the
Petitioner that Petitioner after due consideration of his application
was issued with the residential certificate on 25.04.2007 under
Annexure-5 in Residential Certificate Case No. 2384 dtd.25.04.2007.
It is contended that thereafter without giving any opportunity of
hearing and without issuing any notice whatsoever, the certificate
issued under Annexure-5 was cancelled vide order dtd.05.04.2008
under Annexure-8 by Opp. Party No. 4.
4.1. It is contended that challenging such order Petitioner filed Misc.
Certificate Appeal No. 3/2008 under Annexure-9 before Opp. Party
No. 5. In the said appeal though a specific stand was taken that
Petitioner was never given any opportunity of hearing, but without
considering that aspect, the appellate authority rejected the appeal
vide order dt.26.08.2009 under Annexure-12 and thereby confirming
the order passed under Annexure-8.
4.2. It is contended that since prior to cancellation of the certificate
so issued under Annexure-5 Petitioner was never given an
opportunity of hearing, the impugned order is not sustainable in the
eye of law and liable to be interfered with by this Court. In support
of the aforesaid contentions, Petitioner relied on the decision of the
Hon'ble Apex Court in the case of State Bank of India And Others
Vs. Rajesh Agarwal & Ors., (2023) 6 SCC 1.
4.3. Hon'ble Apex Court in Para 41 & 42 of the Judgment in the case
of Rajesh Agarwal has held as follows:-
"41. In State of Orissa v. Binapani Dei [State of
Orissa v. Binapani Dei, AIR 1967 SC 1269], a two-Judge
Bench of this Court held that every authority which has
the power to take punitive or damaging action has a duty
to give a reasonable opportunity to be heard. This Court
further held that an administrative action which involves
civil consequences must be made consistent with the
rules of natural justice : (AIR p. 1271, para 9)
"9. ... The rule that a party to whose prejudice
an order is intended to be passed is entitled to a
hearing applies alike to judicial tribunals and
bodies of persons invested with authority to
adjudicate upon matters involving civil
consequences. It is one of the fundamental rules of
our constitutional set-up that every citizen is
protected against exercise of arbitrary authority by
the State or its officers. Duty to act judicially
would therefore arise from the very nature of the
function intended to be performed : it need not be
shown to be super-added. If there is power to
decide and determine to the prejudice of a person,
duty to act judicially is implicit in the exercise of
such power. If the essentials of justice be ignored
and an order to the prejudice of a person is made,
the order is a nullity. That is a basic concept of the
rule of law and importance thereof transcends the
significance of a decision in any particular case."
42. In Maneka Gandhi v. Union of India [Maneka
Gandhi v. Union of India, (1978) 1 SCC 248] , a seven-
Judge Bench of this Court held that any person
prejudicially affected by a decision of the authority
entailing civil consequences must be given an
opportunity of being heard. This has been reiterated in a
catena of decisions of this Court."
5. Mr. A. Tripathy, learned Addl. Govt. Advocate on the other hand
contended that in the impugned order it has been clearly indicated
that Petitioner after being provided with due opportunity of hearing,
certificate so issued under Annexure-5 was cancelled vide Annexure-
8. It is contended that the appellate authority after due consideration
of the grounds of appeal, confirmed the same while rejecting the
appeal vide order under Annexure-12. It is accordingly contended
that since as found from the impugned order Petitioner was given due
opportunity of hearing, stand taken by the Petitioner that Petitioner
was not given due opportunity of hearing cannot be believed.
6. Having heard learned counsel appearing for the Parties and
considering the submissions made, this Court finds that the Petitioner
was issued with the resident certificate on 25.04.2007 under
Annexure-5 in Residential Certificate Case No. 2384 dtd.25.04.2007.
Even though a stand has been taken that Petitioner was given due
opportunity of hearing prior to cancellation of the certificate vide
order dtd.05.04.2008 under Annexure-8, but no document
whatsoever has been enclosed to the counter affidavit showing
issuance of any such notice on the Petitioner.
6.1. Even though LCR from the court below was called for, but a
report has come that the LCR is not available. In view of the
aforesaid analysis, this Court is of the view that the matter requires
fresh adjudication by Opp. Party No. 4. Therefore, this Court is
inclined to quash order dtd.05.04.2008 so passed by Opp. Party No. 4
under Annexure-8 further confirmed by Opp. Party No. 5 vide order
dtd.26.08.2009 under Annexure-12. While quashing both the orders,
this Court remits the matter to Opp. Party No. 4 to take a fresh
decision with regard to cancellation of the certificate so issued in
favour of the Petitioner under Annexure-5.
6.2. In order to avoid delay, Petitioner is directed to produce a copy
of this order before Opp. Party No. 4 within a period of two (2)
weeks from the date of receipt of this order. On production of the
certified copy, Opp. Party No. 4 shall permit the Petitioner four (4)
weeks time to file his objection to the proposed cancellation. On
receipt of the objection within the aforesaid time period Opp. Party
No. 4 shall take a lawful decision on the same within a period of two
(2) months. It is however observed that if Petitioner as directed fails
to appear before Opp. Party No. 4, effect of this order will
automatically lapse and order dt.05.04.2008 will be revived.
7. The writ petition is disposed of accordingly.
Digitally Signed Judge
Sneha
Signed by: SNEHANJALI PARIDA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 07-Nov-2024 17:22:06
