A D AMIN vs. AHMEDABAD DISTRICT PANCHAYAT

C/LPA/206/1984 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 206 of 1984

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE KS JHAVERI

and HONOURABLE MR.JUSTICE A.G.URAIZEE

================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ A D AMIN....Appellant(s) Versus AHMEDABAD DISTRICT PANCHAYAT & 1....Respondent(s) ================================================================ Appearance: MR YATIN OZA, SENIOR COUNSEL WITH MR APURVA KAPADIA, ADVOCATE for the Appellant(s) No. 1 NOTICE SERVED for the Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and Page 1 of 9

C/LPA/206/1984 JUDGMENT HONOURABLE MR.JUSTICE A.G.URAIZEE

Date : 24/02/2014

ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. We have heard Mr. Yatin Oza, learned Senior Counsel appearing with Mr. Apurva Kapadia, learned advocate for the appellant. 2. This intra-court Letters Patent Appeal under Clause 15 of the Letters Patent has been filed challenging the common judgement and order dated 29.03.1984 passed by the learned Single Judge in Special Civil Application No. 1526 of 1984 whereby the learned Single Judge has rejected the writ petition. 3. Mr. Yatin Oza, learned Senior Counsel appearing with Mr. Kapadia for the appellants submitted that the notification at Annexure A to the petition appointing respondent no. 2 as the Competent Officer with respect to the properties belonging to respondent no. 1 Panchayat was without jurisdiction and being contrary to the provisions of Section 3 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as ‘the Act’). 3.1 Mr. Oza submitted that in view of the provisions of Section 4(1) of the Act what could be legally recovered is the amount of arrears of rent which is legally due. He submitted that in the present case, in the proceedings filed on 15.05.1982 the respondent Panchayat had claimed arrears of Page 2 of 9

C/LPA/206/1984 JUDGMENT rent for the period from 15.09.1974 to 14.03.1982 when in fact proceedings for recovery of arrears of rent for a period beyond three years from the date of initiation of the proceedings were clearly barred by time. He submitted that in fact the arrears for a period of three years has already been paid and the remaining amount for five years is time barred. He submitted that nevertheless the appellant is ready and willing to pay the remaining part of arrears and he may be restored with the possession of the premises in question. 3.2 Mr. Oza, in support of his submissions, has relied upon a decision of the Apex Court in the case of A.K. Kraipak and Other vs. Union of India and Others reported in 1969 (2) SCC 262 wherein para 15 & 16 read as under: “15. It is unfortunate that Naquishbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most -appropriate person to be in the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naquishbund as a member of the selection board. He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was Page 3 of 9

C/LPA/206/1984 JUDGMENT also party to the preparation of the list of selected candidates in order of preference. At every stage of this participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keen out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates. 16. The members of the selection board other than Naqishbund, each one of them separately, have filed affidavits in this Court swearing that Naqishbund in no manner influenced their decision in making the selections. In a group deliberation each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. Ms bias is likely to operate in a subtle manner. It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions. We are unable to accept the contention that in adjudging the suitability of the candidates the members of the board did not have any mutual discussion. It is not as if the records spoke of themselves. We are unable to believe that the members of selection board functioned like computers. At this stage it may also be noted that at the time the selections were made, the members of the selection board other than Naqishbund were not likely to have known that Basu had appealed against his supersession and that his appeal was pending before the State Government. Therefore there was no occasion for them to distrust the Page 4 of 9

C/LPA/206/1984 JUDGMENT opinion expressed by Naqishbund. Hence the board in making the selections must necessarily have given weight to the opinion expressed by Naqishbund.” 3.3 Mr. Oza also relied on another decision of the Apex Court in the case of J. Mohapatra and Co. and Another vs. State of Orissa and Another reported in (1984) 4 SCC 103, more particularly para 12 which reads as under: “12. There is, however, an exception to the above rule that no men shall be a judge in his own cause, namely, the doctrine of necessity. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down. Thus, in The Judges v. Attorney-General for Saskatchewan,(1) the Judges of the Court of Appeal were held competent to decide the question whether Judges of the Court of Appeal, of the Court of King's Bench and of the District Courts of the Province of Saskatchewan were subject to taxation under the Income-tax Act, 1932, of Saskatchewan on the ground that they were bound to act exnecessitate. The doctrine of necessity applies not only to judicial matters but also to quasi-judicial and administrative matters. The High Court, however, wrongly applied this doctrine to the author- members of the Assessment Sub-Committee. It is true, the members of this Sub-Committee were appointed by a Government Resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of the Government of Orissa, and the Director, Higher Education, etc. Page 5 of 9

C/LPA/206/1984 JUDGMENT There was, however, nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its Resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such non-official author-members from resigning from the committee on the ground of their interest in the matter.” 4. Having heard learned advocates for the parties and having gone through the records of the case, we are of the opinion that essentially this writ petition is against the order of the appellate authority for eviction under the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act. The appellant had preferred two appeals being Appeal Nos. 13 & 14 of 1983 wherein the learned Judge of the City Civil Court framed relevant issues and decided the matter vide order dated 14.03.1984. The Learned Principal Judge of the City Civil Court has not found any substance in the contention of competence of respondent no. 2 as an officer under Section 3 of the Act. The relevant observations made by the Principal Judge vide order dated 14.03.1984 are as under: “11. Shri Bhatt, then argued that the appointment of the competent officer is not legal. That contention has also no merit. In order myself to satisfy about the appointment of the competent officer I called upon Shri Jadeja, the learned advocate for the respondent to show me the Gazette in which the appointment of the competent officer has been published and Shri Jadeja readily showed to me the Gujarat Govt. Gazette being Gujarat Government Gazette, extra ordinary dated April 15, 1975, Part IV-B, issued by the public works department whereby the Notification No. GH/J/15/75/EVC/1173(A)(1), the Government of Gujarat had inter alia appointed the Deputy District Development Officer (Revenue) of each of the Page 6 of 9

C/LPA/206/1984 JUDGMENT District Panchayat or in the absence of Deputy District Development Officer (Revenue) in a District, any Deputy District Development Officer of such District Panchayat to be the competent officer under Section 3 of the Act and the category of premises in respect of which such appointment is made is inter alia, the premises belonging to or taken on lease by or on behalf of the Panchayat. The proceedings in the Eviction Proceedings were held and orders appealed against have been passed by Shri Raghuvanshi, the competent officer and deputy district development officer (Revenue), District Panchayat, Ahmedabad. Thus, the appointment of the Competent Officer has been validly made under S. 3 of the Act and the contention of Shri Bhatt that the appointment of the competent officer has not been properly made has no merit whatever.” 4.1 The Learned Single Judge also while confirming the appeals by way of a single writ petition has observed that public officials are presumed to be men of law able to keep themselves above the petty considerations of the interest of their employees. The relevant portion of the impugned judgement and order is as under: “2. The first point canvassed by Mr. Vyas was that the respondent no. 2, who is the Deputy District Development Officer of the landlord, the respondent no. 1, could not have been appointed as a competent officer under Sec. 3 of the Act. The said Sec. 3 empowers the Government to appoint such person to be competent officer for the purposes of the Act. Officers of equivalent rank of the corporate authority are also included amongst the competent persons. The trust of the argument of Mr. Vyas was that in respect of the premises of the respondent no. 1 panchayat, its Officer himself cannot be appointed by the State Government as a competent authority and the notification appointing him as the competent authority should be struck down as abuse of the statutory power. It is to be Page 7 of 9

C/LPA/206/1984 JUDGMENT remembered that such public officials are presumed to be man of law, able to keep themselves above the petty considerations of the interest of their employees. So, I do not uphold this argument.” 4.2 The learned Single Judge has observed that at the time of hearing of the appeal before the learned Principal Judge, City Civil Court, Ahmedabad a specific statement was made by the appellant that he did not challenge the rental claim. We are of the opinion that no illegality is committed by the learned Single Judge in passing the above order. 4.3 It is required to be noted that the aim of the rules of natural justice is to secure justice or to to prevent miscarriage of justice. Quasi- judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. It is a settled position of law that what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that was necessary for a just decision on the facts of that case. 4.4 In the present case, admittedly, the appellant was in arrears of rent and despite demand had not paid the same and therefore the application before respondent no. 2 had come to be filed both for possession and also for money. The circular of 1975 was never challenged by the appellant. The only Page 8 of 9

C/LPA/206/1984 JUDGMENT challenge was that respondent no. 2 being the Deputy District Development Officer could not have been appointed as a competent officer under Section 3 of the Act. We are therefore of the opinion that in view of the concurrent findings the decision cited by learned advocate for the appellant pale into insignificance and are not applicable to the facts of the present case. 5. Appeal is, therefore, devoid of any merits and is dismissed accordingly. Mr. Oza contended that a major part of the premises is lying vacant and therefore the appellant may be allotted the same on payment of suitable rent. We are of the view that if such is the case, in case of any application from the appellant within thirty days from today, the respondent – District Panchayat may consider the case of the appellant in accordance with law on the basis of today’s market price within a period of six months from the date of receipt of application. (K.S.JHAVERI, J.) (A.G.URAIZEE,J) divya Page 9 of 9