Shaik Abdul Shukur & Anr. v. Janab Sk.Abdul Saleem & Ors.

Per G.S.Singhvi, C.J. The rules of natural justice are multi dimensional and multi-faceted. One of these rules is that every judicial and quasi-judicial authority and even administrative authority entrusted with the task of deciding lis between the parties or passing order which may adversely affect some person, must not only record the reasons but also communicate the same to the affected person. The requirement of recording of reasons and communication has been treated as an integral part of the concept of natural justice and has been highlighted in a series of the judgments of Supreme Court, some of which are: Harinagar Sugar Mills v. Shyam Sundar M.P. Industries Limited v. Union of India, Bhagat Raja v. Union of India, Mahavir Prasad Santoshkumar v. State of U.P., Travancore Rayons v. UOI, Messrs Ajanta Industries v. Central Board of Direct Taxes, New Delhi, Messrs Siemens Engineering & Manufacturing Company v. Union of India, S.N.Mukherjee v. Union of India, Cyril Lasrado vs. Juliana Maria Lasrado, State of Orissa vs. Dhaniram Luhar, State of Rajasthan vs. Sohan Lal, Mangalore Ganesh Beedi Works vs. C.I.T. and Manorama Sachan vs. Lucknow Development Authority etc. I n S.N. Mukherjee’s case (supra), the Constitution Bench of the Supreme Court after a detailed survey of English, American and Australian law on the subject and making reference to various judicial precedents, laid down the following proposition: jurisdiction has been conferred on

“The object underlying the rules of natural justice “to prevent miscarriage of justice” and secure “fair play in action.” As pointed out earlier the requirement about recording of reasons for its decision by an admini- strative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expand-ing horizon o the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by admini-strative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the parti-culars statutory framework whereunder administrative authority. With regard to the exercise of a particular power by an admini-strative authority including exercise of judicial or quasi- judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement.

It may do so by making an express provision to that effect as those contained in the Administrative Procedure Act, 1946 of U.S.A and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case.” In Cyril Lasrado Vs. Juliana Maria Lasrado (supra), the Supreme Court reiterated the necessity of recording of reasons in the following words: “Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision.

Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. Once of the salutary requirements of natural justiceis spelling out reasons for the order made, in other words, a speaking out. The is ordinarily the sphinx' 'inscrutable incongruous with a judicial or quasi-judicial performance.” face of

Reasons introduce clarify in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgement not sustainable.

In State of Orissa vs. Dhaniram Luhar (supra) and State of Rajasthan vs.

Sohan Lal (supra), the Supreme Court considered the question whether a petition for leave to appeal filed under Section 378(3) of the Code of Criminal Procedure could be dismissed by the High Court without assigning reasons and answered the same in the negative. In Sohanlal's case (supra), the Supreme Court laid down the following propositions:

The Hallmark of a judgment/order and exercise of judicial power by a judicial forum is to disclose the reasons for its decision and giving of reasons has been always insisted upon as one of the fundamentals of sound administration justice-delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice.

“The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know of the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind.

All the more so, when refusal of leave to appeal has the effect of foreclosing once and for all a scope for scrutiny of the judgment of the trial court even at the instance and hands of the first appellate court.” “The Supreme Court in Dhaniram Luhar case, (2004) 5 SCC 568, while reiterating the view expressed in the earlier cases for the past two decades emphasised the necessity, duty and obligation of the High Court to record reasons in disposing of appeals arising under Section 378 Cr.P.C, 1973. The fct that the entertaining of an appeal at the instance of the State against an order of acquittal for an effective consideration of the same on merits is made subject to the preliminary exercise of obtaining of leave to appeal from the High Court, is no reason to consider it as an appeal of any inferior quality or grade, when it has been specifically and statutorily provided for, or sufficient to obviate and dispense with the obvious necessity to record reasons.

The need for recording reasons for the conclusion arrived at by the High Court under Section 378 has nothing to do with the fact that the appeal envisaged under Section 378 has nothing to do with the fact that the appeal envisaged under Section 378 Cr.P.C is conditioned upon the seeking for an obtaining of leave from the court.” In Mangalore Ganesh Beedi Works v. C.I.T (supra), the Supreme Court held that even the appellate order passed under Sections 260A and 260B of Income Tax Act, 1961 must satisfy the requirement of a speaking order and observed:

In an order of affirmation, repetition of reasons elaborately may not be necessary. But even then the arguments advanced and the points urged have to be dealt with. Reasons for affirmation have to be indicated, though in appropriate cases they may be briefly stated.

“Recording of reasons is a part of fair procedure. Reasons are harbinger between the mind of maker of the decision in the controversy and the decision or conclusion arrived at.

They substitute subjectivity with objectivity. Therefore, the matter is remitted to the High Court to consider the relevant points afresh.” In Testeels Limited v. N.M.Desai, Conciliation Officer and another a Full Bench of Gujarat High Court speaking through Sri P.N.Bhagwati, J (as His Lordship then was) made a lucid analysis of the law on the subject and laid down the following principles: “There are two strong and cogent reasons why we must insist that every quasi-judicial order must disclose reasons in support of it. The necessity of giving reasons flows as a necessary corollary from the rule of law which constitutes one of the basic principles of our constitutional set-up. Our Constitution posits a welfare State in which every citizen must have justice—social, economic and political and in order to achieve the ideal of welfare State, the State has to perform several functions involving acts of interferences with the free and unrestricted exercise of private rights.

The State is called upon to regulate and control the social and economic life of the citizen in order to establish socio-economic justice and remove the existing imbalance in the socio-economic structure. The State has, administrative authorities which involve making of orders and decisions and performance of acts affecting the rights of individual members of the public. In exercise of some these functions, the administrative authorities are required to act judicially. Now what is involved in a judicial process is well settled and as pointed out by Shah J. in Jaswant Sugar Mills’s case, AIR 1963 SC 677 supra, a quasi-judicial decision involves the following three elements: therefore, necessarily to entrust diverse functions

It is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rules; It declares rights or imposes upon parties obligations affecting their civil rights; and The investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of material if a dispute be on question of fact, and if the dispute be on question of law, on the presentation, of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact. Another reason of equal cogency which weighs with us in spelling out the necessity for giving reasons is based on the power of judicial review which is possessed by the High Court under Article 226 and the Supreme Court under Article 32. The High Court under Article 226 and the Supreme Court under Article 32 have the power to quash by certiorari a quasi-judicial order made by an administrative officer and this power of review exercisable by issue of certiorari can be effectively exercised only if the order is a speaking order and reasons are given in support of it.

Whether the petitioner can maintain the Writ Petition under Article 226 of the Constitution of India without exhausting the alternative remedy of appeal available under the Wakf Act?” After hearing learned counsel for the parties, the learned Single Judge answered both the questions in favour of the writ petitioner (Respondent No.1 herein) and quashed order dated 7.5.2005 by holding that the same is not in consonance with the mandate of Section 67(2) of the Act and is also violative of the rules of natural justice. The learned Single Judge over-ruled the objection of alternative remedy raised on behalf of the appellant by observing that the order under challenge had been passed by the Board in violation of the rules of natural justice and, in such a case, the High Court can directly entertain the writ petition. Sri E.Ayyapu Reddy, learned senior counsel appearing for the appellants argued that the view taken by the learned Single Judge on the issue of availability of alternative remedy is contrary to the settled legal position and, therefore, the order passed by her is liable to be set aside.

where proceedings are taken before a Tribunal under a provision of law, which is ultra vires to the Constitution,

2. where the impugned order has been made in violation of the rules of natural justice. I n Harbanslal Sahnia v. Indian Oil Corporation Ltd., the Supreme Court considered the situations in which the High Court can exercise power under Article 226 of the Constitution of India notwithstanding the availability of alternative remedy and held: “The rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v.

Registrar of Trade Marks {(1998) 8 SCC 1}. The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners’ dealership, which is their bread and butter, came to be terminated for an irrelevant and non- existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings.” By applying the ratio of the aforementioned judgments to the facts of this case, we hold that the learned Single Judge did not commit any error by entertaining the writ petition despite the availability of alternative remedy of appeal. We further hold that the learned Single Judge rightly quashed order dated 7-5-2005 because the same was passed in violation of Section 67 (2) and the rules of natural justice. The objection of the learned counsel for the appellants that the petition suffers from non-joinder of parties also merits rejection because we find that during the pendency of the writ petition, the appellants claiming themselves to be the President and members of the District Wakf Committee had got themselves impleaded in representative capacity and effectively contested the writ petition.