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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 15737 OF 2023
Maruti Baburao Tambe (decd) through LHRs & Ors. ...Petitioners
Mr. B. V. Samant, Add. GP with Ms. R. M. Shinde, AGP for State.
DATED: 19 July 2024.
ORAL JUDGMENT
1. A short issue, which arises for consideration in the present proceeding, is whether in the facts and circumstances of the case, in the absence of an explicit jurisdiction conferred by law on a quasi judicial authority, to review an order passed by it, is it justified for the petitioners to pursue a review application.
2. The petitioners, who are the owners of the land in question and subject matter of acquisition, have filed this petition under Article 226 of the Constitution of India praying for a limited relief that the application filed by the petitioners for review of an order dated 08 June 2004 passed by the Additional Divisional Commissioner, Pune Division, Pune, be decided 19 July, 2024 expeditiously. By such order, the petitioners’ application under Section 48(1) of the Land Acquisition Act, 1894 (for short, “LA Act”) and under the provisions of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 (for short, “the Act”) has been rejected.
3. It is not in dispute that an award under Section 11 of the LA Act acquiring petitioners’ land was rendered on 11 March, 1981. The predecessors of the petitioners had instituted Regular Civil Suit No. 979 of 1981 before the Court of Civil Judge, Senior Division, at Pune for a declaration that the acquisition is void and illegal. In such suit, the petitioners were granted an interim protection of a status quo which continued to operate till the civil suit came to be disposed of by an order dated 05 September 1997, on the ground that the Civil Court did not have jurisdiction.
4. The petitioners have averred in the petition, that notwithstanding an award being published in the year 1981, till date the petitioners have continued to remain in physical possession of the land, which according to the petitioners, is an indisputed position. In these circumstances, at the relevant time, i.e., on 15 May, 1998 the petitioners filed Application No. 63 of 1998 under Section 48(1) of the LA Act read with Section 22 of the Act before the competent authority praying that the petitioners land be deleted from acquisition and/or the State Government withdraws the acquisition of the petitioners land.
5. On such application, on 18 May, 1998 respondent no.2-Additional Commissioner, Pune Division, Pune passed an interim order directing the parties to maintain status quo. The application had remained pending for quite some time, and ultimately by an order dated 08 June 2004, respondent no.2 dismissed the application without the petitioners being granted any hearing by the authority who passed such order. It is in these circumstances, the petitioners being aggrieved by the rejection of their application under Section 48(1) of the LA Act, filed an application dated 30 June 2004, seeking a review of the order dated 08 June 2004. The ground on which the petitioners prayed for a review of such order was to the effect that the petitioners were not granted an opportunity of a hearing on their substantive application filed under Section 48(1) of the LA Act by the incumbent authority who had passed the said order, hence, there was a “procedural defect” in the adjudication of Section 48(1) application.
6. The case of the petitioners is also to the effect that earlier the Additional Commissioner had passed some interim orders on such Review application of the petitioners, by inter alia inviting panchanama, however, for a long period of time the petitioners Review Application is kept pending and is not being decided. In these circumstances, the petitioners have filed the present petition praying for the following reliefs:-
7. Learned counsel for the petitioners would submit that this is a case wherein the order under review dated 08 June 2004 passed on the petitioners’ application, under Section 48(1) of the LA Act by the Additional Commissioner was rendered without the petitioners being heard, for such reason, it is ex facie in breach of the principles of natural justice. It is submitted that although such order records that on 29 May 2003 the petitioners were heard through their advocate, however, the Additional Commissioner who heard the petitioners on the said date, was a different Officer and not the Officer who had passed the order dated 08 June 2004. It is submitted that this was specifically contended by the petitioners in paragraph 4 of the review application. It is next submitted that once the officer, who had passed the order, had not heard the petitioners, the order dismissing the petitioners application under Section 48(1) was bad and illegal, being in breach of the principles of natural justice and for such reason, sufficient ground was made out by the petitioners for review of the said order.
8. Learned counsel for the petitioners would submit that there is clearly a procedural infirmity and/or an inherent defect in the authority passing the order dated 08 June 2004 in rejecting the petitioners’ Section 48(1) application, and for such reason, the nature of the review sought by the petitioners was a procedural review, for which a requirement of a specific authority or power of review need not be vested in the authority, so as to remove the procedural defect by a fresh order being passed. In support of his submissions, learned counsel for the petitioners has placed reliance on the decision of the Supreme Court in Kapra Mazdoor Ekta Union vs. Birla Cotton Spinning and Weaving Mills Ltd. & Anr.1.
9. On the other hand, Mr. Samant, learned Addl. GP for the State in opposing this petition would submit that considering the facts of the case, at the outset the petition needs to be dismissed being barred by delay and laches. It is next submitted that even the review application filed by the petitioners in respect of which orders are sought in the present proceeding was not maintainable, as the petitioners have not shown any specific powers of review or such jurisdiction, conferred on the quasi judicial authority, under the provisions of LA Act in adjudicating the Section 48(1) application, for the 1 (2005) 13 Supreme Court Cases 777 Court to come to a conclusion that such application of the petitioners could at all be pursued, much less warranting the prayers as made in this petition. Mr. Samant accordingly prays for dismissal of the petition.
10. We have heard learned counsel for the parties, with their assistance we have perused the record. Having read the order dated 08 June 2004 passed by the Additional Commissioner on the petitioners’ application under Section 48(1) of the Act, it appears that the petitioners advocate was heard on such application on 29 May 2003 by the erstwhile Additional Commissioner holding such charge, however, the order on the petitioners application dated 08 June 2004 came to be passed by a different Officer / Additional Commissioner, who replaced the said Additional Commissioner, that too almost one year and one month, after the previous officer had granted a hearing to the petitioners.
11. It is well settled that the quasi-judicial authority who actually hears a party, is expected to pass an order. In the absence of a hearing, certainly a situation would be brought that the orders so passed, would be orders passed in breach of the principles of natural justice. The petitioners in the review application have taken such ground in paragraph 4 of the review application, by pointing out such procedural defect, in the adjudication of their Section 48(1) application, when the petitioners made a specific grievance that the authority who heard the petitioners through their advocate, a year back had not passed the order subject matter of their review. The ground as raised in the Review Application of the petitioners reads thus:- “ (Official Translation )
4) Earlier, the Appellants had received one Notice in the matter of the case bearing No. Rehab. W. S.-3 / S. R. / 63 / 1998. Sethi Saheb had put a remark viz. The case is closed for giving a decision, on the said Notice and had sent the same to the District Rehabilitation Officer, Pune, for seeking his opinion. However, at that time itself, Sethi Saheb was transferred and G.T. Bandri Saheb was appointed to his post. Therefore, it was necessary that Shri Bandri Saheb should have issued us a Notice to enable us to submit our say in the matter of hearing. However, as no such Notice was issued to us and as we were not informed anything by our earlier Advocates, the decision that has been given in the said case has been given behind our back and as a result thereof, we are deprived of the natural justice. Hence, it is necessary that a review should be held in the said case.”
12. It also appears that the petitioners review application was earlier heard by the Additional Commissioner and interim orders were passed inter alia ordering a panchanama. We are not concerned with such orders passed on such application, suffice it to observe that such application appears to have remained pending and is not being decided, appears to be not in dispute.
13. Insofar as the petitioners’ contention that in these circumstances, although the LA Act does not specifically confer a power on the Additional Commissioner to review the order dated 08 June 2004, we find substance in the petitioners’ contention, that the nature of the review as sought by the petitioners was in the nature of a procedural review and not a review on the merits of the order.
14. The object and purpose behind a procedural review would be that a party to any proceeding subject matter of quasi judicial adjudication, ought not to be prejudiced and unnecessarily suffer, on account of any procedural defect in any quasi judicial adjudication. Any procedural defect in the process of a quasi judicial adjudication, would certainly cause a serious prejudice to a party to such proceedings, and such defect would go to the root of such adjudication. It may not be out of place to observe that a quasi judicial adjudication has traits akin to a judicial adjudication. Hence, procedural fairness to be adhered by the authority in rendering quasi judicial decision is a sine qua non. It also cannot be overlooked that quasi judicial authorities are conferred with enormous jurisdiction, powers and authority to deal with not only the statutory rights, but the constitutional rights of the citizens / persons, for such reason the well established norms of a fair, reasonable and a rational procedure in the adjudication of such causes play a pivotal role.
15. In the present case, the adjudication of the petitioners application under Section 48(1) involves their statutory rights as also rights integral to the guarantee as conferred under Article 300A of the Constitution. Hence, the quasi judicial authority, who is concerned with the complexion of such legal rights of the litigant before him, is under an onerous obligation to strictly adhere to the norms of fair procedure and cannot be oblivious in adhering to the norms of procedural fairness and propriety, which are paramount in any quasi judicial adjudication. Any order passed in breach of such norms would become vulnerable to be challenged on the ground that it is illegal and invalid.
16. In the context of a power of a procedural review, it is well settled that when an application for review in the nature of procedural review (and not a substantive review on merits of the order) is made, there is no requirement of any explicit authority / power to be conferred by law on the judicial or quasi judicial authority, so as to exercise a review jurisdiction to procedurally review an order, passed by such authority. In this regard, learned counsel for the petitioners would be correct in placing reliance on the decision of the Supreme Court in Kapra Mazdoor Ekta Union (supra) wherein the Supreme Court on the permissibility of a procedural review in paragraph 19 of the report observed as under:- "19. Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again.” (emphasis supplied)
17. It is hence clear that where a Court or quasi-judicial authority having jurisdiction to adjudicate proceeds to pass an order, a party aggrieved by such order can maintain an application for review in the event the authority passing such order and exercising its jurisdiction commits a procedural illegality which would go to the root of the matter as such defect would invalidate the proceedings. Thus, the quasi-judicial authority would not be empowered to adjudicate the proceedings without notice to the concerned parties. In such event, the party seeking a procedural review or a recall of the order, does not have to substantiate any other ground to assail such order in review proceedings. This was precisely the grievance of the petitioners in the review application as filed before the Additional Commissioner, that the order dated 08 June 2004 passed by the erstwhile Additional Commissioner and subject matter of the review proceedings, was required to be held to be invalid when tested on such principles, in the procedural review being sought by the petitioners.
18. Although a submission as made by Mr. Samant that there is delay on the part of the petitioners in pursuing the present proceedings appears to be attractive at the first blush, however, on a deeper scrutiny, such contention needs to fail. The petitioners without any delay filed the review application on 30 June 2004 praying for review of the order dated 08 June 2004 which indisputedly is kept pending and/or is not being decided. It also appears that in fact, the review authority had taken steps to adjudicate the review application including to pass interim orders directing a panchanama. Be that as it may, what has weighed with us to come to a conclusion that there is no delay much less laches on the part of the petitioners in pursuing the present petition, is also considering that the petitioners have continued to remain in possession of the land in question and to this effect a categorical statement has been made by the petitioners in the writ petition. This despite the fact that the land acquisition award in the present case was published on 11 March 1981, and it has continued to remain as a paper award, as the possession of the acquired land itself has remained with the petitioners. The petitioners having continued to remain in possession of the acquired land, the petitioners would certainly have legal rights to pursue an application under Section 48(1) of the LA Act, as possession of the owner of the land is a basic jurisdictional factor for maintaining such application, which would have relevancy at all material times for pursuing such application. Thus, the petitioners would certainly have a cause of action to approach the authority and pursue the proceeding under Section 48(1) of the LA Act to seek withdrawal of the land from acquisition, in respect of which an award was passed almost 43 years back.
19. There is another facet of the matter when the petitioners have raised an issue that the Additional Commissioner who heard the petitioners, is not the officer who has passed the order dated 8 June 2004, subject matter of review. A Division Bench of this Court in Rukhana Associates vs. E-Square Leisure Pvt. Ltd.[2] wherein the Court although was concerned with judicial proceedings, held that the judgment can be pronounced only by the Judge who has heard oral arguments. In such case, the Judge who had heard the oral arguments was transferred before pronouncing the judgment and/or writing the judgment. It was held that in such situation, the new Judge had no option but to hear the oral arguments afresh, and only thereafter pronounce the judgment. The Court observed that it was not correct for the Judge who has not heard the parties to pronounce any judgment and for such reason, the judgment under appeal was quashed and set aside. 2 2010(6) ALL MR 360
20. In Golden Chariot Airport vs. Airports Authority of India & Anr.[3] learned Single Judge of this Court held it to be a well settled principle of law that when a statute calls upon the Authority or Officer to form an opinion and take a decision, he must apply his own mind to the situation and after considering various aspects of the case, himself render a decision. It was observed that the law does not tolerate an officer who is entrusted with the responsibility of taking a decision referring the case to another officer and then verbatim adopting the latter’s reasonings and views without any effort on his own part. The Court observed that a consideration of the case by the Officer who had heard the parties, is the live link between the facts and the decision.
21. The above principles of law are applicable to the facts of the present case inasmuch as admittedly the petitioners were not heard by the incumbent Additional Commissioner who had passed the impugned order, in fact the hearing before the erstwhile Additional Commissioner had taken place thirteen months prior to the order dated 08 June 2004 being passed on the petitioners application under Section 48(1) of the LA Act. In this view of the matter, we are not persuaded to accept Mr. Samant’s submission that the review proceedings as initiated by the petitioners are without substance, so that no directions on this petition are called for. 3 2009(3) ALL MR 79
22. In the light of the above discussion, we are of the considered opinion that the petition would be required to be allowed. Hence, the following order:- ORDER i. Respondent no.2-Additional Commissioner, Pune Division, Pune is directed to decide the review application dated 30 June 2004 filed by the petitioners in respect of the land bearing Gut No. 1451 admeasuring 07H 30R PK 0.3.14 situated at Village Urali, Taluka Havelli, District- Pune, within a period of two months from the date the present order is placed before the said authority after granting an opportunity of being heard to the petitioners and in accordance with law. ii. All contentions of the parties on the pending proceedings are expressly kept open. iii. Disposed of in the above terms. No costs. (SOMASEKHAR SUNDARESAN, J.) (G. S. KULKARNI, J.)