Patna High Court
Ajay Choudhary vs The State Of Bihar on 9 January, 2024
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14890 of 2023
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1. Ajay Choudhary S/o Yugal Kishor Choudhary R/o-Ward no.-6, Mohalla-
Vidhyadhar, P.O. and P.S.-Khagaria, District-Khagaria.
2. Abhay Choudhari S/o Yugal Kishor Choudhary, R/o-Ward no.-6, Mohalla-
Vidhyadhar, P.O. and P.S.-Khagaria, District-Khagaria.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Revenue and Land
Reforms Department, Government of Bihar, Patna.
2. The Principal Secretary, Revenue and Land Reforms Department,
Government of Bihar, Patna.
3. The Divisional Commissioner, Munger.
4. The District Magistrate, District-Khagaria.
5. The Circle Officer Khagaria, District-Khagaria.
6. The Executive Officer, Nagar Parishad, Khararia, Dist.-Khagaria.
7. Sajan Kumar Choudhari S/o-Shri Kapildev Choudhary, R/o-Choudhary Tola,
Rahimpur, PO and PS Muffasil Khagaria, District - Khagaria Bihar-851204.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Alok Ranjan, Advocate.
For the Respondent/s : Mr. Arif Daula Siddiqui, AC to SC-25.
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 09-01-2024
Heard Mr. Alok Ranjan, learned counsel appearing on
behalf of the petitioners and Mr. Arif Daula Siddiqui, learned
AC to SC-25 for the State.
2. Learned counsel appearing on behalf of the
petitioners seeks permission to make amendment by adding
"cum District Grievances Redressal Officer" in addition to refer
the respondent no.6 in the cause title in course of the day.
3. Permission is accorded.
Patna High Court CWJC No.14890 of 2023 dt.09-01-2024
2/9
4. Learned counsel appearing on behalf of the
petitioners submits that the petitioners are aggrieved by the ex-
parte order dated 13.03.2023 passed by the Divisional
Commissioner, Munger in Case No. 421110113122205650/1A
by which he has been pleased to set aside the order dated
02.03.2022
passed by the Executive Officer, Nagar Parishad,
Khagaria and for setting setting aside the consequential order
dated 03.06.2023.
5. He submits that one Sajjan Kumar Chaudhary who
is not related in any manner with respect to the land on which
building was being erected after proper sanction of map by the
Nagar Parishad, Khagaria had preferred an appeal being Appeal
Case No. 421110113122205650/1A dated 14.12.2022 and the
Divisional Commissioner, Munger against the order dated
02.03.2022 passed by the District Public Grievance Redressal
Officer cum Executive Officer, Nagar Parishad, Khagaria.
without giving any details of the cause and issuing notice to the
petitioners or any of the affected parties had set aside the order
dated 02.03.2022 and remanded the matter to the District Public
Grievance Redressal Officer cum Executive Officer, Nagar
Parishad, Khagaria.
6. It is the case of the petitioners that an order dated
Patna High Court CWJC No.14890 of 2023 dt.09-01-2024
02.03.2022 was passed in favour of the petitioners by the
Executive Officer, Khagaria, who was then directed by the
Divisional Commissioner, Munger to exercise his jurisdiction as
a District Public Grievance Redressal Officer, Khagaria. The
Executive Officer as a consequence of the order dated
13.03.2023 passed by the Divisional Commissioner, Munger -
respondent no.3 has passed an ex parte order dated 03.06.2023
contained in Memo No. 1204 dated 14.07.2023 imposing
penalty of Rs.20,05,892/- (Twenty lacs five thousand eight
hundred and ninety two) against the petitioners.
7. Learned counsel admits that the petitioners were
not in a position to appear before the District Grievance
Redressal Officer cum Executive Officer, Nagar Parishad,
Khagaria due to illness of petitioner no.1 and petitioner no.2
being outside the State. Learned counsel for the petitioners
admits that no request for time was made by the petitioners. He
informs that the Executive Officer just after issuance of notice
contained in Memo No. 571 dated 24.04.2023 proceeded to pass
order on 03.06.2023 contained in Memo No. 1204 dated
14.07.2023. On these grounds, learned counsel seeks for
quashing of the ex-parte order dated 13.03.2023 passed by the
Divisional Commissioner, Munger and consequential order
Patna High Court CWJC No.14890 of 2023 dt.09-01-2024
dated 03.06.2023 contained in Memo No. 1204 dated
14.07.2023 passed by the Executive Officer, Nagar Parishad,
Khagaria.
8. Per contra, learned counsel appearing on behalf of
the State submits that on bare perusal of the order contained in
Annexure-1, it appears that the same don't require any
interference because no order has been passed on merits rather
the Divisional Commissioner, Munger who is the First Appellate
Authority has directed the District Grievance Redressal Officer
cum Executive Officer, Nagar Parishad, Khagaria to pass order
in accordance with law. The consequential order passed by the
respondent no.6- the Executive Officer, Nagar Parishad,
Khagaria is in accordance with law where the petitioners chose
not to appear before the respondent no.6-the Executive Officer,
Nagar Parishad, Khagaria and waiting for nearly two months the
impugned order dated 03.06.2023 contained in Memo No. 1204
dated 14.07.2023 was passed.
9. Having considered the rival submissions made on
behalf of the parties, the petitioners have rushed to this Court
immediately against a penal order which was passed against
them imposing penalty of Rs.20,05,892/- (Twenty lacs five
thousand eight hundred and ninety two) imposing condition that
Patna High Court CWJC No.14890 of 2023 dt.09-01-2024
in case of failure, a certificate proceeding can be proposed to be
initiated against the petitioners.
10. Exercise of jurisdiction regarding imposing
penalty is well settled by the Apex Court in the case of State of
Bihar v. Industrial Corpn. (P) Ltd. reported in (2003) 11
SCC 465 in Paragraph No. 14 and 16 has held hereinafter:
"14. Coming to the first ground, it is not disputed that no
opportunity of hearing of any kind was afforded to the
respondents herein before the penalty was sought to be
imposed and recovered. It is also admitted that there was no
adjudication of the alleged breach of Condition 8 of the
tender notice. In A. Mohd. Basheer v. State of Kerala
[(2003) 6 SCC 159] it was held that unless there is a
determination of breach of contract and damages are
quantified, no damages can be imposed and recovered. In
G.M., North East Frontier Rly. v. Dinabandhu Chakraborty
[(1971) 3 SCC 883] this Court held that the Government
cannot be a judge in its own cause in the absence of any
statutory provision empowering it to act as such. In Vishnu
Rice Mill v. Regional Food Controller, Bareilly [1984 All LJ
592] it was held by the Allahabad High Court as under: (All
LJ p. 594, para 13)
"13. Learned Standing Counsel, however, contended
that the State Government was justified in
withholding both the price payable to the petitioner
and the release certificate claimed by the petitioner
if it could be shown that the petitioner had failed to
perform its obligation under the agreement between
the parties. Learned Standing Counsel placed
reliance upon clause 9 of the said Order which has
been quoted above. In our opinion, this contention of
Patna High Court CWJC No.14890 of 2023 dt.09-01-2024
the learned Standing Counsel is not tenable. Clause
9 itself shows that even though the State
Government has a statutory authority to direct a rice
miller to convert State Government's paddy into
rice, still, the terms and conditions on which the
government paddy will be converted into rice by the
licensed rice miller will be 'such terms and
conditions as may be agreed upon'. The agreement
itself containing the terms and conditions cannot be
said to be a statutory contract merely because the
State Government has a right under clause 9 to
direct a rice mill to convert paddy into rice. It has
been stated above that along with the counter-
affidavit Annexure CA 1 has been annexed, which is
said to be the agreement between the parties. In
clause 11 of the said agreement there is a provision
for arbitration in case of dispute, difference, or
question touching or arising out of the agreement or
the subject-matter thereof. In our view, if the State
Government has any grievance that the licensed
miller has failed to fulfil the terms and conditions of
the said agreement between the parties, it is not open
to the State Government to seek its redress in respect
of such grievance by withholding the release
certificate under clause 3(4) or by withholding or by
making any deduction from the price which is
payable by the State Government to the petitioner
under clause 7 of the said Order."
16. In the present case, what we find is that
before creating a demand of penal duty or penalty, there was
no adjudication by any authority as regards the breach
committed by the respondents. We also find that no
opportunity of any kind was offered to the respondents
before the demand as regards the penal duty was pressed
against the respondents. The matter was not even examined
as to what was the reason for shortfall in the production of
rectified spirit. The Molasses Act does not provide for
Patna High Court CWJC No.14890 of 2023 dt.09-01-2024
imposition of such penalty in the event of shortfall of spirit.
It must, therefore, necessarily be held that the imposition of
the impugned penalty being against the principles of natural
justice is illegal and void."
In this regard, further the Apex Court in the case of
Isolators & Isolators v. M.P. Madhya Kshetra Vidyut Vitran
Co. Ltd. reported in (2023) 8 SCC 607 has held as under:
"38.1. The first and foremost being that in the
show-cause notice dated 26-11-2019, the appellant was put
to notice only as regards the proposition of debarment and
in the said notice, nothing was indicated about the proposed
imposition of penalty. Though in the cancellation orders
dated 19-11-2019 and 21-11-2019, the respondents
purportedly reserved their right to take appropriate steps,
those orders cannot be read as show-cause notice
specifically for the purpose of imposition of penalty. The
submissions on behalf of the respondents in this regard that
the said orders dated 19-11-2019 and 21-11-2019 have
attained finality do not take their case any further. Finality
attaching to the action of cancellation cannot be read as a
due notice for imposition of penalty even if the respondents
chose to employ the expression "cancelled with imposition
of penalty" in those orders. Looking to the terms of contract,
quantification of the amount of penalty (if at all the penalty
is considered leviable) could not have been carried out
without affording adequate opportunity of response to the
appellant. That being the position, the action of the
respondents in imposing the penalty without even putting
the appellant to notice as regards this proposed action
cannot be approved."
11. Keeping the principle laid down by the Apex Court,
on bare perusal of the order dated 13.03.2023 passed by the
First Appellate Authority cum Divisional Commissioner,
Munger, it appears that no notice was given to the petitioners
nor the petitioners were heard, however, the matter was
remanded back to the Executive Officer, Nagar Parishad,
Patna High Court CWJC No.14890 of 2023 dt.09-01-2024
Khagaria, who had issued notice to the petitioners contained in
Memo No. 571 dated 24.04.2023, but according to the
petitioners, a statement has been made before this Court that the
petitioner no.1 could not file his reply because he was ill and
under medical treatment. Petitioner no.2 was not residing in
Khagaria. A specific statement has also been made in Para-8 of
the writ petition in this regard.
12. The facts which remain to be determined is, as to
whether, the ex-parte order passed by the First Appellate
Authority without having issued any notice to the petitioners
and passed behind the back of the petitioners is without
jurisdiction, and as a result of same, the consequential order
dated 03.06.2023 passed by the Executive Officer can be
sustained in the eye of law?
13. In the case of Institute of Chartered
Accountants of India Vs. L. K. Ratna & Ors. reported in
(1986) 4 SCC 537, the Apex Court has found that if the initial
order is bad, then consequential order is also bad. Relevant
paragraph of the judgment is reproduced hereinafter:
"18. But perhaps another way of looking at the
matter lies in examining the consequences of the initial order as
soon as it is passed. There are cases where an order may cause
serious injury as soon as it is made, an injury not capable of being
entirely erased when the error is corrected on subsequent appeal.
....... And, therefore, it seems to us, there is manifest need to
ensure that there is no breach of fundamental procedure in the
Patna High Court CWJC No.14890 of 2023 dt.09-01-2024
original proceeding, and to avoid treating an appeal as an overall
substitute for the original proceeding." (Emphasis supplied)
14. In light of the discussions made here-in-above and
the law laid down by the Apex Court, the order dated
13.03.2023 passed by the Divisional Commissioner cum First
Appellate Authority being in complete violation of principles of
natural justice is hereby set aside and quashed. The
consequential order dated 03.06.2023 contained in Memo No.
1204 dated 14.07.2023 is also fit to be set aside and is quashed.
15. The Executive Officer, Nagar Parishad, Khagaria,
if so desires, may proceed in accordance with law and pass
appropriate order. In case he proceeds to impose penalty against
the petitioners, due opportunity of hearing be given to the
petitioners in accordance with law.
(Purnendu Singh, J)
mantreshwar/-
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 18.01.2024
Transmission Date N.A.
