Punjab-Haryana High Court
Swati Vashisht vs State Of Haryana And Others on 25 August, 2023
Neutral Citation No:=2023:PHHC:111772-DB
109 CWP-18776-2023 -1-
2023:PHHC:111772-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-18776-2023
DATE OF DECISION: 25.08.2023
SWATI VASHISHT
......PETITIONER
Vs.
STATE OF HARYANA AND OTHERS
.........RESPONDENTS
CORAM: HON'BLE MR. JUSTICE G.S. SANDHAWALIA
HON'BLE MS. JUSTICE HARPREET KAUR JEEWAN
Present: Mr. Amit Jhanji, Senior Advocate, with
Mr. Shashank Shekhar Sharma, Advocate,
for the petitioner.
Mr. Arun Beniwal, D.A.G., Haryana.
*****
G.S.SANDHAWALIA, J. (ORAL)
1. The petitioner challenges the order dated 09.08.2023
(Annexure P-4) passed by the District Town Planner while exercising the
power of the Director, Town and Country Planning, Haryana, wherein,
pursuance to the show cause notice dated 26.07.2023 (Annexure P-2), the
petitioner has been ordered to restore the building to its originally approved
use, keeping in view the provision of Section 10 (2) of the Haryana
Development and Regulations of Urban Areas Act, 1975.
2. The reply filed by the petitioner, dated 02.08.2023 (Annexure
P-3) had been found to be unsatisfactory by the respondents while rejecting
her claim in view of the order dated 09.08.2023 (Annexure P-4), which in
fact can be termed as a non-speaking order, in view of the law laid down by
the Hon'ble Supreme Court in M/S Kranti Associate Pvt. Ltd. & Anr vs
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Masood Ahmed Khan & Ors 2010 (4) RCR (Civil) 600, whereby it was
observed that a quasi judicial order should contain reason. The relevant part
of the judgment reads as under:-
"51. 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.
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 life blood of judicial decision making justifying
the principle that reason is the soul of justice.
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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 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.
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Therefore, for development of law, requirement of giving
reasons for the decision is of the essence and is virtually a
part of "Due Process".
3. We have also quashed similar orders and directed
reconsideration in similar circumstances in CWP-18037-2023,
titled Saloni Kaicker vs. State of Haryana and others, decided on
21.08.2023.
4. The background of the case, as such, is that the petitioner
alleges that she is running a small Dental Consultancy Clinic which would
fall under the category of 'professional activity' and she was a litigant in an
earlier round in CWP-20333-2006 (Annexure P-1), wherein she was
arrayed as petitioner No. 22. The claim, as such was that f0or doctors
running a clinic in 25% or less than 25% area of their residential premises,
the sealing could not be done without following due procedure. The co-
ordinate Bench at that point of time on 21.12.2006 allowed the petition by
observing that if professional activity is being carried out by the persons
and by filing the affidavit regarding usage of a small portion of the
residential premises occupied by them, then in such a situation, no coercive
action with regard to sealing of the residential premises shall be carried out
by the authorities. That same was keeping in view the fact that it was
permitted under the provisions of the Act, and it could not be treated as
unauthorized or commercial. The said defence was also raised in the reply
to the legal notice issued now.
5. Learned counsel appearing for the petitioner further brought to
our notice, a judgment of this Court passed by the co-ordinate Bench in
Anita Kataria vs. State of Haryana and others 2012 (1) PLR 826,
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wherein keeping in view the fact that a non-nuisance professional
consultancy is recognized under the Haryana Urban Development
(Disposal of Land & Building) Regulations, 1978, permitting a doctor
(without nursing homes) has been recognized as one of the categories. It
was held that the activity would be by an individual due to his personal
skill. Apparently, the writ petition had been allowed and the writ petitioner,
as such, had been allowed to carry on the business of Beauty and Skin
Consultancy Services, in view of the said regulations. It is accordingly,
brought to our notice that as per the Haryana Building Code, 2017,
similar provisions also provide for the leverage to use the residential
premises for such occupation of trade or professional activity to a limited
extent of area.
6. Keeping in view that all these specific objections have not
been raised in reply to the show cause notice, we permit the petitioner to
file a better response to the show cause notice, wherein she can raise all the
objections. Needful be done within a period of 02 weeks from today. The
respondents-authorities shall then consider the said objections and then
pass a speaking order, keeping in view the objections which had been
raised. It is made clear that the authority shall decide the matter after giving
an opportunity of personal hearing to the petitioner.
7. The writ petition is accordingly partly allowed and the
impugned order, dated 09.08.2023 (Annexure P-4) is accordingly quashed.
8. Needless to say that anything stated hereinabove is only for the
purposes of setting aside the impugned order, which is without any
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reason and we have not commented anything about the merits of the case.
(G.S. SANDHAWALIA)
JUDGE
August 25, 2023 (HARPREET KAUR JEEWAN)
nitin JUDGE
Whether Speaking Yes
Whether Reportable No
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