Construction Co. Ltd. Vs. Govt. of A.P. & Ors.  INSC 1780 (20 October
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1438 OF 2004 M/s
Nagarjuna Construction Co. Ltd. ..Appellant versus Govt. of Andhra Pradesh and
Ors. ..Respondents WITH CIVIL APPEAL NO. 1439 of 2004 CIVIL APPEAL NO. 1442 of
2004 CIVIL APPEAL NO. 1443 of 2004 CIVIL APPEAL NO. 1444 of 2004
Dr. ARIJIT PASAYAT,
common points are involved in these appeals, they are disposed of by this
Petitions were filed by the appellants before the Andhra Pradesh High Court
praying for quashing the order passed by the State Government in Memorandum
No.8817/M.II(1)/2001-6, dated 4.2.2002 and the consequent demand notice issued
by the Director of Mines and Geology and the proceedings of the Deputy
Director, Mines and Geology. The appellant in each case is engaged in the
business of construction, engineering and civil works. In each case the
appellant had participated in the tenders invited by the Bharat Heavy
Electricals Ltd. (in short `BHEL') for the purpose of executing their part of
the contract which is with NTPC for levelling and grading. BHEL had awarded the
contract to the appellant- company for execution of the work. According to the
appellant, the material required for the purpose of execution of the contract
in terms of the specifications prescribed under the contract is earth, morrum
gravel and mixture of these or any other material approved by the BHEL. The
appellant had obtained rights for excavation of good earth from the ryots of
patta lands in the vicinity as well as from the quarry lease holders. Each
appellant was supplying the materials from the source in which they obtained
right of excavation of materials. Huge quantity of these materials was supplied
under the contract. The Assistant Director of Mines and Geology required BHEL
to show cause as to why action should not be initiated to realize a sum of
money towards seigniorage fee which includes five times penalty over and above
the normal seigniorage fee. The Assistant Director required BHEL to produce
documentary evidence, if any, with regard to the source from where the
materials had been procured alongwith the permits issued by the Department.
BHEL filed a detailed reply disputing the liability in the matter. It was
indicated that the requisite application for allotment of quarries and other
formalities were to be done directly by the sub contractors concerned. The
agencies have been paying the seigniorage fee directly to the Department of
Mines and Geology. In between meeting was held between the agencies and
Department of Mines and Geology, BHEL and the contractors. Detailed minutes
were drawn up according to which the Director of Mines and Geology expressed
that type of filling materials may have to be decided by the Department of
Mines and not by the contractors themselves.
demands were raised. Reference was made to certain data supplied by BHEL to the
Vigilance and Enforcement Department. It was observed that filling material was
partly gravel and partly ordinary clay in respect of which seigniorage fee is
liable to be paid. The appellant in eachcase requested the authority to
withdraw the demands while agreeing to pay the seigniorage fee under protest.
Assistant Director, Mines and Geology again sent demand notice.
The Deputy Director
of Mines and Geology raised demand notice directing the appellant to pay a
higher sum being the balance of seigniorage fee after giving credit to the fees
already paid. At this stage the appellant submitted detailed representation to
the Secretary (Mines), Industries and Commerce Department, Government of Andhra
Pradesh inter-alia highlighting various contradictory notices issued by the Assistant
Director and the Deputy Director. The Government of Andhra Pradesh in exercise
of suo motu revisional jurisdiction under Rule 35-A of the Andhra Pradesh Minor
Mineral Concession Rules, 1966 (in short the `Andhra Pradesh Rules') set aside
the revised demand issued by the Deputy Director confirming the original demand
and the appellant was directed to pay the balance amount.
Writ Petition was
filed before the High Court challenging the revisional order. The High Court by
its order dated 20.7.2001 allowed the writ petition at the admission stage
holding that the order of the State Government is misconceived and
unsustainable on account of having been issued without any notice to the
affected persons. However, leave was granted to the Government to initiate
fresh proceedings if so desired and if so permitted by law after giving notice
and opportunity to the appropriate parties. Notices were issued to all the sub-
contractors and after hearing the parties the order impugned before the High
Court was passed. Again challenge was made before the High Court.
first stand was that the Government ought not to have passed the impugned order
clubbing the companies with the other sub contractors inasmuch as demands
raised by the Deputy Director in respect of each party were totally different.
Quantity and the nature of materials supplied by each of them and the sources
were different and merits of each case was to be gone into separately and it
was also submitted that the order of the State Government was passed on
surmises and assumptions and indicated non application of mind.
was also submitted that seigniorage fee on the total quantity of earth
materials supplied by the company was levied in utter disregard of the analyst
report of the material and without any authority to do so. Finally, it was
submitted that copy of the report submitted by the Deputy Director of Mines and
Geology who was purportedly instructed to inspect the area toascertain the
nomenclature of the materials supplied by the sub contractors to the BHEL was
not at point of time supplied to the affected parties. It was submitted that
the Government could not have ignored the test and analyst report of the
Department of Civil Engineering and Soil Mechanics Division of Andhra Pradesh
University which was a relevant piece of evidence. A detailed counter affidavit
was filed on behalf of the Joint Director of Mines and Geology, Department of
Mines and Geology, Hyderabad. Allegations were disputed. The High Court
observed that the Deputy Director of Mines and Geology had played havoc in the
matter. He had been placed under suspension. He was found guilty of the charges
in the matter of short levy and collection of seigniorage fee. Various charges
were framed against him and the enquiry officer appointed has submitted his
report upholding him guilty of several charges.
High Court came to hold that the plea of the Government that said officer had
acted in collusion with the appellant was not without any basis. The High Court
also observed that in reply to the show cause notice BHEL had furnished a list
of five sub-contractors who were entrusted with the leveling work. In reply it
was stated that the agency had paid certain amounts towards seignior age fee
for the quantities burrowed from the foot of the hills. It was further
submitted that in line with the provisions of the contract the agencies are
under obligation to accept and deal with the mining department directly. It was
therefore the stand of BHEL that it had no mens area and had always made conscious
effort to ensure payment of seigniorage fee by the agencies.
was stated that BHEL was under the impression that the matter would have been
decided upon as the department had inspected the sources presumably in the
presence of agencies as agreed in the meeting held on 4.9.1999.
the counter-affidavit it was also submitted that the appellants had failed to
produce documentary evidence. The Deputy Director had acted on the basis of
information furnished by BHEL. The High Court referred to BHEL's letter dated
8.3.2000 whereby the details of total quantities of filling materials supplied
by sub contractors were furnished. According to the data, various mines had
been supplied as filling materials. The High Court noticed that there was no
evidence to show that seigniorage fee had been paid in respect of filling
to the High Court the main question that arose for consideration was the nature
of the soil utilized by the appellants in the levelling and grading work
undertaken by them under the agreement with BHEL.
of the appellants was that the bulk of the materials used by the
appellants-companies was earth and the same was not subject to seigniorage fee.
It was therefore contended that the initiation of suo motu revisional power and
the orders passed are illegal as the order ignored the materials available on
was pointed out that what was supplied was gravel from the quarry and the
ordinary earth from the patta land and therefore the argument that the total
material received by BHEL was partly gravel from sources of foot hills and
partly ordinary clay from the tank beds and, therefore, the material is subject
to seigniorage fee was vitiated for the reason that there was no material
supplied by one of the appellants i.e. M/s Nagarjuna Construction Co. Ltd. from
the foothills and the tank bed lands.
State's stand as highlighted before the High Court was about the so-called
collusion between the concerned Deputy Director and the appellants and his
giving No Objection for the release of the amounts by BHEL. The High Court
referred to para 3.03.01 of the specifications of the contract. We will deal
with this aspect later.
High Court primarily focused on the role allegedly played by the concerned
Deputy Director. It was observed that no permission was taken by any of the
appellants to quarry mining as required under law and they had also not made
available the details of purchase and lease of private lands for the purpose of
excavation of materials. It did not accept the stand that what was utilized was
only earth material for filling purpose and the same was not subject to
seigniorage fee. The High Court observed that this version of the appellants
cannot be accepted as a gospel truth and the conduct of the appellants showed
that they were playing hide and seek with the statutory authorities.
High Court noted objection of appellants that the inspection report was not
made available either by the Department or the Government as to enable the
appellant to file its objections. It rejected the plea with the following
"However, it is
urged that the said inspection report is not made available either by the
Department or the Government so as to enable the petitioner-company to file its
objections. The petitioner-company admittedly supplied some quantity of gravel
also. The source from whom the gravel is purchased and the details of transit
waybills are not furnished by the petitioner-company at any point of time. No
efforts ever have been made by the petitioner-company to identify and reveal
the source of supply of material consumed and utilized by it for the purpose of
filling in fulfillment of its contractual obligation. Everything is shrouded in
mystery. Neither the petitioner-company nor the other sub contractors responded
to the repeated queries of the department. The record contains the inspection
notes of the sites from where the petitioner-company excavated the material.
The memorandum of
grounds, which has been treated as an explanation, does not contain any
objection as to the non supply of the inspection report. There is no plea of
any prejudice having been caused on account of non supply of the said
inspection notes. It is not as if the petitioner-company demanded for the
inspection notes during the hearing of the revision and the Government failed
to furnish the same. In the absence of any such plea and demonstration of any
prejudice having been caused on account of non supply of the inspection notes
the impugned order cannot be set aside on that score."
High Court also did not find any substance in the plea relating to non
consideration of the test and analysis report of the Civil Engineering
Department of Andhra University. It was held that it was a self service devise
adopted by the appellant. Therefore, it was held that since the Government had
arrived at to its decision after hearing the parties no interference is called
far as the question of penalty is concerned, it was held that though mens rea
is an essential ingredient but the fatual position left no manner of doubt that
the appellant was not acting bona fide. The High Court did not also attach
importance to the stand taken by the Department in the earlier writ petitions.
Accordingly, all the writ petitions were dismissed.
basic stand of the appellants in the appeals is that the basic principles of
natural justice have not been followed in the present case. The authorities
have acted on certain materials which were collected behind the back of the
appellants and the reports submitted by certain authorities. The High Court's
conclusion that no prejudice was caused by non supply is really a conclusion
without any foundation. Finally, in view of the accepted stand of the State
Government in the earlier writ petitions it would not be open for the State
Government to take diametrically opposite stand to levy the seigniorage fee. It
was also submitted that the report of the Department 11 of Civil Engineering of
Andhra Pradesh University was obtained by Governmental authorities. The High
Court should not have accepted the stand of the State Government as to why the
report was not to be considered. It was also pointed out that the portion of
the contract as quoted by the High Court was incomplete. Therefore, it was
submitted that view of the High Court is clearly unsustainable.
was also made to the judgment dated 3.3.1999 in Writ Petition Nos. 1990, 2271
and 2741 of 1999 filed by the appellant where it was held as follows:
"the power to collect
seigniorage fee at the rates mentioned in Schedule I read with Rule 10 is
subject to filling material being declared as minor mineral under Section 3(c)
as the fact that earth is a "filling material" cannot be disputed. As
the State Government under Section 15 has the power to levy fee in respect of
the minor mineral as declared by the Central Government under Section 3(c) by a
notification published in the official gazette, and since no proceeding is
placed before me declaring Earth as minor mineral by the Central Government by
a notification published in the official gazette, and in the absence of a
notification issued by the Central Government declaring earth as minor mineral,
the State Government is not competent to collect seigniorage fee under Rule 10
read with Schedule 1".
Central Government by Notification No.GSR No.95(E) dated 3.2.2000 had notified
the earth as a minor mineral and has enabled the State Government to levy
seigniorage fee under Rule 10 of the Rules on earth also. The schedule was
amended and the entry was re-numbered in the following manner:
Morram/Gravel-Rs.13-(Rupees thirteen) per cubic meter".
High Court noted that since the amendment came after the contract period was
over, it was really of no consequence.
however, accepted the stand of the State Government that only that ordinary
earth which does not contain any mineral content whatsoever alone was exempted
from payment of seigniorage fee and there is hardly any earth which does not
contain fine particles or other minerals in respect of which seigniorage fee is
liable to be charged.
counsel for the State, on the other hand, supported the judgment of the High
Court and stated that the conduct of the appellants disentitled them from
getting inequitable relief. Further more, there was no foundation in the plea
that what the State Government had stated earlier would act as an estoppel.
shall first deal with the plea relating to incorrect reflection of the
conditions in the contract. The High Court has referred to para 3.03.01 of the
specifications of the contract. It reads as follows:
used for constructing the embankment by earth filling shall be Morram, Gravel,
a mixture of these or any other material approved by the Engineer."
is not the correct quotation. In the instant case the expression
"earth" is missing. The actual clause reads as follows:
used for constructing embankment by earth filling shall be earth, morrum,
gravel and mixture of these or any other material approved by the engineers.
The materials shall be free from lumps, clouds, boulders or rock pieces roots
and vegetations, harmful salts and chemicals, organic material, silt, fine sand
expansive clays in order to provide stable embankment. Further, in the said
specification, it is clearly mentioned that the material for embankment shall
be as obtained from a particular source with the preference given to material
becoming available from nearby road excavation under the same contract or any
other excavation under the same contract."
it is noticed the High Court has relied on certain records which purportedly
contain the inspection notes of the sites from where the appellants had
excavated the material. It is to be noted that for the first time before the
High Court these records were produced. Since there was no reference to the so
called inspection notes at any point of time the question of the appellant
pleading prejudice because of non-supply of the same does not arise. The High
Court observed that since the appellant had not demanded for the inspection
notes during hearing of the revision there was no question of any prejudice.
The approach is clearly wrong. At no point of time, not even at the time of
hearing of revision petition or in the revisional order there is any reference
to the so called inspection notes. Added to that, the High Court did not
consider the effect of the stand taken by the Government earlier.
the earlier round of proceedings the respondents had categorically admitted
that the appellants utilized earth only as filling material. In the additional
counter-affidavit filed by the Joint Secretary of Mines, in the present case it
was explained that in the counter affidavit filed on behalf of the respondents
dated 18.2.1999 in Writ Petition No.1990/99, the then Assistant Director made a
statement that the excavated material is earth which is also liable to levy
seigniorage fee. This was a mistake. By the time the counter-affidavit was
filed, the Department had no precise knowledge of the locations where
excavation was going on or the nature of the soil which was being excavated. It
was much later i.e. in December, 1999 pursuant to a meeting between the various
contractors and the concerned officials during which it was decided that the
locations should be disclosed to the Department. Then the Deputy Director and
Assistant Director inspected the areas and opined that the excavated material
was not simply earth but gravel and clay. The High Court found the explanation
to be convincing. What the High Court seems to have overlooked is that there
was a specific admission in the earlier cases. It is also not borne out from
the records as to when the so called inspection notes of the Deputy Director
and the Assistant Director were made and what was the nature of their report.
The High Court's observation that the counter affidavit earlier was on account
of inadvertence is without any basis. The observations of the High Court that
there was no question of sending the samples to the Department of Civil
Engineering are also unsustainable. As a matter of fact it is not a case that
the appellants themselves had sent the samples. In fact, the samples were sent
by the Department apart from the samples being sent by the appellants. The High
Court's observations that they were rightly ignored by Government do not stand
to reason. The report was available on record and was not by an ordinary
authority, and was by the Department of Andhra Pradesh University.
High Court did not accept the view expressed by a learned Single Judge while
disposing of writ petition No.4579 of 2001 filed by one of the sub contractors
M/s Gayatri Projects Ltd. Though that order was not challenged by the
Department, the Division Bench thought that the decision was not proper. In any
event, that question is of no relevance in the present case. The High Court
rightly observed that since the amendments referred to, were introduced after
the expiry of the contract period they were really of non consequence.
at from any angle the judgment of the High Court is unsustainable.
basic principles of natural justice seem to have been disregarded by the State
Government while revising the order. It acted on materials which were not
supplied to the appellants. Additionally the High Court for the first time made
reference to the report/inspection notes which was not even referred to by the
State Government while exercising revisional power.
obligation to act fairly on the part of the administrative authorities was
evolved to ensure the rule of law and to prevent failure of justice. This
doctrine is complementary to the principles of natural justice which the
quasi-judicial authorities are bound to observe. It is true that the
distinction between a quasi-judicial and the administrative action has become
thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak v. Union
of India (1969 (2) SCC 262). Even so the extent of judicial scrutiny/judicial
review in the case of administrative action cannot be larger than in the case
of quasi-judicial action. If the High Court cannot sit as an Appellate
Authority over the decisions and orders of quasi-judicial authorities, it
follows equally that it cannot do so in the case of administrative authorities.
In the matter of administrative action, it is well known, more than one choice
is available to the administrative authorities;
they have a certain
amount of discretion available to them. They have "a right to choose
between more than one possible course of action on which there is room for
reasonable people to hold differing opinions as to which is to be
preferred" (as per Lord Diplock in Secy. of State for Education and
Science v. Metropolitan Borough Council of Tameside, 1976(3) All ER 665 at
pp.695f). The court cannot substitute its judgment for the judgment of
administrative authorities in such cases. Only when the action of the
administrative authority is so unfair or unreasonable that no reasonable person
would have taken that action, can the court intervene. To quote the classic
passage from the judgment of Lord Greene, M.R. in Associated Provincial Picture
Houses Ltd. v. Wednesbury Corpn: (1947 (2) all All ER pp.682H-683A) "It is
true the discretion must be exercised reasonably.
Now what does that
mean? Lawyers familiar with the phraseology commonly used in relation to
exercise of statutory discretions often use the word `unreasonable' in a rather
comprehensive sense. It has frequently been used and is frequently used as a
general description of the things that must not be done. For instance, a person
entrusted with the discretion must, so to speak, direct himself properly in
law. He must call his own attention to the matters which he is bound to
consider. He must exclude from his consideration matters which are irrelevant
to what he has to consider. If he does not obey those rules, he may truly be
said, and often is said, to be acting `unreasonably'. Similarly, there may be
something so absurd that no sensible person could ever dream that it lay within
the powers of the authority."
conclusions regarding absence of prejudice are, therefore, not sustainable.
justice is another name for commonsense justice. Rules of natural justice are
not codified canons. But they are principles ingrained into the conscience of
man. Natural justice is the administration of justice in a commonsense liberal
way. Justice is based substantially on natural ideals and human values. The
administration of justice is to be freed from the narrow and restricted
considerations which are usually associated with a formulated law involving
linguistic technicalities and grammatical niceties.
It is the substance
of justice which has to determine its form.
expressions "natural justice" and "legal justice" do not
present a water-tight classification. It is the substance of justice which is
to be secured by both, and whenever legal justice fails to achieve this solemn
purpose, natural justice is called in aid of legal justice. Natural justice
relieves legal justice from unnecessary technicality, grammatical pedantry or
logical prevarication. It supplies the omissions of a formulated law. As Lord
Buckmaster said, no form or procedure should ever be permitted to exclude the
presentation of a litigants' defence.
adherence to principles of natural justice as recognized by all civilized
States is of supreme importance when a quasi-judicial body embarks on
determining disputes between the parties, or any administrative action
involving civil consequences is in issue. These principles are well settled.
The first and foremost principle is what is commonly known as audi alteram
partem rule. It says that no one should be condemned unheard.
Notice is the first
limb of this principle. It must be precise and unambiguous. It should appraise
the party determinatively the case he has to meet. Time given for the purpose
should be adequate so as to enable him to make his representation. In the absence
of a notice of the kind and such reasonable opportunity, the order passed
becomes wholly vitiated. Thus, it is but essential that a party should be put
on notice of the case before any adverse order is passed against him. This is
one of the most important principles of natural justice. It is after all an
approved rule of fair play. The concept has gained significance and shades with
time. When the historic document was made at Runnymede in 1215, the first
statutory recognition of this principle found its way into the "Magna
Carta". The classic exposition of Sir Edward Coke of natural justice
requires to "vocate interrogate and adjudicate". In the celebrated
case of Cooper v. Wandsworth Board of Works (1963 (143) ER 414), the principle
was thus stated:
"Even God did
not pass a sentence upon Adam, before he was called upon to make his defence.
says God, "where
art thou has thou not eaten of the tree whereof I commanded thee that though
should not eat".
Since then the
principle has been chiselled, honed and refined, enriching its content.
Judicial treatment has added light and luminosity to the concept, like
polishing of a diamond.
of natural justice are those rules which have been laid down by the Courts as
being the minimum protection of the rights of the individual against the
arbitrary procedure that may be adopted by a judicial, quasi-judicial and
administrative authority while making an order affecting those rights. These
rules are intended to prevent such authority from doing injustice.
is meant by the term `principles of natural justice' is not easy to determine.
Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board (1914) 1 KB
160 at p.199:83 LJKB 86) described the phrase as sadly lacking in precision. In
General Council of Medical Education & Registration of U.K. v. Sanckman
(1943 AC 627: (1948) 2 All ER 337), Lord Wright observed that it was not
desirable to attempt `to force it into any procusteam bed' and mentioned that
one essential requirement was that the Tribunal should be impartial and have no
personal interest in the controversy, and further that it should give `a full
and fair opportunity' to every party of being heard.
Wright referred to the leading cases on the subject. The most important of them
is the Board of Education v. Rice (1911 AC 179:80 LJKB 796), where Lord
Loreburn, L.C. observed as follows:
recent statutes have extended, if they have originated, the practice of
imposing upon departments or offices of State the duty of deciding or
determining questions of various kinds. It will, I suppose usually be of an
administrative kind, but sometimes, it will involve matter of law as well as
matter of fact, or even depend upon matter of law alone.
In such cases, the
Board of Education will have to ascertain the law and also to ascertain the
facts. I need not and that in doing either they must act in good faith and
fairly listen to both sides for that is a duty lying upon everyone who decides
anything. But I do not think they are bound to treat such a question as though
it were a trial....The Board is in the nature of the arbitral tribunal, and a
Court of law has no jurisdiction to hear appeals from the determination either
upon law or upon fact. But if the Court is satisfied either that the Board have
not acted judicially in the way I have described, or have not determined the
question which they are 23 required by the Act to determine, then there is a
remedy by mandamus and certiorari".
Lord Wright also
emphasized from the same decision the observation of the Lord Chancellor that
the Board can obtain information in any way they think best, always giving a
fair opportunity to those who are parties to the controversy for correcting or
contradicting any relevant statement prejudicial to their view". To the
same effect are the observations of Earl of Selbourne, LO in Spackman v.
Plumstead District Board of Works (1985 (10) AC 229:54 LJMC 81), where the
learned and noble Lord Chancellor observed as follows:
"No doubt, in
the absence of special provisions as to how the person who is to decide is to
proceed, law will imply no more than that the substantial requirements of
justice shall not be violated. He is not a judge in the proper sense of the
word; but he must give the parties an opportunity of being heard before him and
stating their case and their view. He must give notice when he will proceed
with the matter and he must act honestly and impartially and not under the
dictation of some other person or persons to whom the authority is not given by
law. There must be no malversation of any kind. There would be no decision
within the meaning of the statute if there were anything of that sort done
contrary to the essence of justice".
Lord Selbourne also
added that the essence of justice consisted in requiring that all parties
should have an opportunity of submitting to the person by whose decision they
are to be bound, such considerations as in their judgment ought to be brought
before him. All these cases lay down the very important rule of natural justice
contained in the oft-quoted phrase `justice should not only be done, but should
be seen to be done'.
of natural justice has undergone a great deal of change in recent years. Rules
of natural justice are not rules embodied always expressly in a statute or in
rules framed thereunder. They may be implied from the nature of the duty to be
performed under a statute. What particular rule of natural justice should be
implied and what its context should be in a given case must depend to a great
extent on the fact and circumstances of that case, the frame-work of the
statute under which the enquiry is held. The old distinction between a judicial
act and an administrative act has withered away. Even an administrative order
which involves civil consequences must be consistent with the rules of natural
justice. Expression `civil consequences' encompasses infraction of not merely
property or personal rights but of civil liberties, material deprivations, and
non-pecuniary damages. In its wide umbrella comes everything that affects a
citizen in his civil life.
justice has been variously defined by different Judges. A few instances will
suffice. In Drew v. Drew and Lebura (1855(2) Macg. 1.8, Lord Cranworth defined
it as `universal justice'. In James Dunber Smith v. Her Majesty the Queen
(1877-78(3) App.Case 614, 623 JC) Sir Robort P. Collier, speaking for the
judicial committee of Privy council, used the phrase `the requirements of
substantial justice', while in Arthur John Specman v. Plumstead District Board
of Works (1884-85(10) App. Case 229, 240), Earl of Selbourne, S.C. preferred
the phrase `the substantial requirement of justice'. In Vionet v. Barrett
(1885(55) LJRD 39, 41), Lord Esher, MR defined natural justice as `the natural
sense of what is right and wrong'. While, however, deciding Hookings v.
Smethwick Local Board of Health (1890 (24) QBD 712), Lord Fasher, M.R. instead
of using the definition given earlier by him in Vionet's case (supra) chose to
define natural justice as `fundamental justice'. In Ridge v. Baldwin (1963(1)
WB 569, 578), Harman LJ, in the Court of Appeal countered natural justice with
`fair-play in action' a phrase favoured by Bhagawati, J. in Maneka Gandhi v.
Union of India (1978 (2) SCR 621). In re R.N. (An Infaot) (1967(2) B617, 530),
Lord Parker, CJ, preferred to describe natural justice as `a duty to act
fairly'. In fairmount Investments Ltd. v. Secretary to State for Environment
(1976 WLR 1255) Lord Russell of Willowan somewhat picturesquely described
natural justice as `a fair crack of the whip' while Geoffrey Lane, LJ. In
Regina v. Secretary of State for Home Affairs Ex Parte Hosenball (1977 (1) WLR
766) preferred the homely phrase `common fairness'.
then have the principles of natural justice been interpreted in the Courts and
within what limits are they to be confined? Over the years by a process of
judicial interpretation two rules have been evolved as representing the
principles of natural justice in judicial process, including therein
quasi-judicial and administrative process. They constitute the basic elements
of a fair hearing, having their roots in the innate sense of man for fair-play
and justice which is not the preserve of any particular race or country but is
shared in common by all men. The first rule is `nemo judex in causa sua' or
`nemo debet esse judex in propria causa sua' as stated in (1605) 12 Co.Rep.114
that is, `no man shall be a judge in his own cause'.
Coke used the form
`aliquis non debet esse judex in propria causa quia non potest esse judex at
pars' (Co. Litt. 1418), that is, `no man ought to be a judge in his own case,
because he cannot act as Judge and at the same time be a party'. The form `nemo
potest esse simul actor et judex', that is, `no one can be at once suitor and
judge' is also at times used. The second rule is `audi alteram partem', that
is, `hear the other side'. At times and particularly in continental countries,
the form `audietur at altera pars' is used, meaning very much the same thing. A
corollary has been deduced from the above two rules and particularly the audi
alteram partem rule, namely `qui aliquid statuerit parte inaudita alteram
actquam licet dixerit, haud acquum facerit' that is, `he who shall decide
anything without the other side having been heard, although he may have said
what is right, will not have been what is right' (See Bosewell's case (1605) 6
Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, `justice should
not only be done but should manifestly be seen to be done'. Whenever an order is
struck down as invalid being in violation of principles of natural justice,
there is no final decision of the case and fresh proceedings are left upon. All
that is done is to vacate the order assailed by virtue of its inherent defect,
but the proceedings are not terminated.
therefore, set aside the impugned order of the High Court. The matter is
remitted to the State Government to re-consider the matter after supplying to
the appellants copies of reports/inspection notes on which the Department case
rests. It shall also consider the effect of the concession made by the
Department in the earlier rounds of proceedings before the High Court.
appeals are allowed but without any order as to costs.
(Dr. ARIJIT PASAYAT)
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