PRAMODBHAI ATMARAM DESAI vs. SPECIAL SECRETARY (APPEALS), REVENUE DEPARTMENT

C/SCA/4108/2019 ORDER DATED: 09/03/2023 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 4108 of 2019 ========================================================== PRAMODBHAI ATMARAM DESAI & ORS. Versus SPECIAL SECRETARY (APPEALS), REVENUE DEPARTMENT & ORS. ========================================================== Appearance: MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5 for the Respondent(s) No. 1,2 DECEASED LITIGANT for the Respondent(s) No. 3 MR RUTVIJ S OZA(5594) for the Respondent(s) No. 3.1,3.10,3.2,3.3,3.4,3.5,3.6,3.7,3.8,3.9 ========================================================== CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 09/03/2023

ORAL ORDER 1.Heard

learned

advocate

Mr.Vimal A.Purohit for the petitioner and learned advocate Mr.Rtuvij S.Oza for the respondent nos.3.1 to 3.9 and learned AGP Mr.Dhawan Jayswal for the respondent nos.1 and 2. 2.By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 31.12.2015 passed by the respondent no.1 Special Secretary Page 1 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 Revenue Department (Appeals) (for short ‘the SSRD’) in revision application no.3 of 2005 filed by the petitioner confirming the order dated 28.03.2005 passed by the Deputy Collector, Surat in Remand Case No.8 of 2000 whereby the land admeasuring 2630 square meters of Survey No.80/3, Block No.182, Mouje Chaprabhatha, Taluka Choryasi, District Surat would vest in the State Government without encumbrances for alleged breach of Section 73AA(1) and (4) of the Bombay Land Revenue Code, 1879 (for short ‘the Code’). 3.The brief facts of the case are as under: 3.1. The respondent no.3-late Naranbhai Koyabhai who was a member of the Scheduled Tribe Community transferred the land in question in favour of the petitioner by Power of Attorney dated 12.08.1980 along with the possession Page 2 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 thereof. 3.2. N/A permission was granted for the land in question vide order dated 14.11.1979. The petitioner has also taken license for running a Touring Talkies on 20.05.1980. 3.3. Late Naranbhai Koyabhai respondent no.3 also executed a registered ‘Will’ on 13.08.1988 bearing Registration No.1132 in favour of the petitioner. 3.4. The respondent Shri Naranbhai Koyabhai expired on 01.01.1996 and therefore the Will became effective and name of the petitioner was mutated in the revenue record as owner and occupier vide mutation entry no.639 dated 15.01.1987. 3.5. The Deputy Collector issued a notice for breach of Section 73AA of the Code by taking into suo moto Page 3 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 revision the entry no.639 and by order dated 19.03.1996 withdrew the notice after considering all the documents on record and arriving at conclusion that there is no breach of provision of Section 73AA(4) of the Code. It was also observed by the Deputy Collector that the land in question was transferred in the name of the petitioner in the year 1980 i.e. prior to implementation of the provision of Section 73AA of the Code which came into effect from 01.02.1981 and NA permission as well as the permission of running Touring Talkies was also granted to the petitioner as per the rules by the concerned authority. 3.6. Prior to the aforesaid order dated 19.03.1996 the Additional Mamlatdar and Krushipanch, Taluka Choryasi had also issued the notice to the petitioner and the respondent no.3 under Section 84C of the Code registering the Ganot Case Page 4 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 No.61 of 1986, however the said notice was also withdrawn vide order dated 29.04.1988 by the Additional Mamlatdar and Krushipanch Choryasi observing that the respondent no.3 has executed the Power of Attorney in favour of the petitioner and the petitioner is running Touring Talkies since the year 1979 and premium for change of use of land was also paid by the petitioner and the land in question is in Commercial Zone and therefore no case was made out under Section 84C of the Code. 3.7. The respondent no.1-SSRD took the order dated 19.03.1996 in suo moto revision no.17 of 1989 and by order dated 04.04.2000, quashed and set aside the order dated 19.03.1996 passed by the Deputy Collector Vyara and remanded the matter back to the Deputy Collector Surat for further inquiry. Page 5 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 3.8. The remand case was registered as case no.8 of 2000 before the Deputy Collector Surat. Thereafter by order dated 28.03.2005, the Deputy Collector Surat ordered to vest the land in question into the State Government without any encumbrances for the breach of Section 73AA(1) & (4) of the Code and Section 63 and 36(1)(f) of the Bombay Tenancy and Agricultural Land Ceiling Act, 1948 and also for violation of Sections 7 and 8 of the Bombay Prevention of Fragmentation and Consolidation Act, 1947. 3.9. The petitioner being aggrieved and dissatisfied by the order of the Deputy Collector Surat preferred revision application before the respondent no.1 SSRD under Section 211 of the Code which was registered as Revision Application No.3 of 2005. 3.10. The respondent no.1 SSRD by order Page 6 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 dated 31.12.2005 rejected the revision application filed by the petitioner confirming the order passed by the Deputy Collector Surat dated 28.03.2005 in Remand Case No.8 of 2000. 3.11. Being aggrieved by the aforesaid orders, the petitioner has preferred this petition with a prayer to quash and set aside the same. 4.Learned advocate Mr.Vimal Purohit for the petitioner submitted that impugned orders are liable to be quashed and set aside as there is no breach of Section 73AA(4) of the Code as the land in question was transferred prior to 01.02.1981, the date on which Section 73AA of the Code came into force and therefore the Deputy Collector in order dated

19.03.1996

dropped

the proceedings initiated for breach of the said provision. Page 7 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 4.1. It was submitted that the respondent no.1-SSRD has not assigned any reason for confirming the order passed by the Deputy Collector but only observed that the petitioner is granted the opportunity of hearing and the order passed by the Deputy Collector is proper and the petitioner has also not given the details of the legal heirs of the respondents and therefore the revision application filed by the petitioner also suffers from the lacuna of non joinder of parties and the order passed by the Deputy Collector is therefore not required to be interfered with. 4.2. It was submitted that the respondent no.1 has not taken into consideration the submissions made by the petitioner in the memo of the revision. It was therefore submitted that only on this short ground of not giving any reasons for confirming the Page 8 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 order passed by the Deputy Collector dated 24.03.2005, the matter may be remanded back to the respondent no.1 to pass a fresh order. 4.3. In support of his submissions, reliance was placed on the decision of Hon’ble Supreme Court in case of Siemens Engineering and Manufacturing Company India Ltd. Vs. Union of India reported in AIR 1976 SC 1785, wherein the Hon’ble Supreme Court has held that, where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. 4.4. It was therefore submitted that as the impugned order passed by the SSRD is without any reason, the same may be quashed and set aside by remanding the matter back to the SSRD. 5.On the other hand learned AGP Mr.Dhawan Page 9 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 Jayswal could not controvert the fact that the impugned order passed by the SSRD does not record any reason for confirming the order passed by the Deputy Collector. 6.Considering the above submissions and on perusal of the impugned order passed by the SSRD, it is not in dispute that the same does not record any reason for confirming the order dated 24.03.2005 passed by the Deputy Collector vesting the land in question to the Government for the breach of Section 73AA(1)&(4) of the Code. 7.The Hon’ble Supreme Court in the case of Siemens

Engineering

and Manufacturing Company India Ltd.(Supra) has held as under: “6. Before we part with this appeal, we must express our regret at the manner in which the Assistant

Collector,

the Page 10 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 Collector and the Government of India disposed of the proceedings before

them.

is incontrovertible

that

the proceedings before the Assistant Collector arising from the notices demanding differential duty

were

quasi

judicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned counsel appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi- judicial function it must record its reasons in support of the order it makes. Every quasi- judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N. M. Desai v. The Testeels Ltd. C.A.245 pf 1970 decided on 17-12- 1975(SC). But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him con firming the demand for differential duty. This was in plain

disregard

the Page 11 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated 8th December,

1961

which

were repeated in the subsequent representation dated 4th June, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants has been properly considered by him. If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently Page 12 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 clear and explicit reasons in support of the orders made by them. Then alone administrative authorities

and

tribunals exercising

quasi-judicial function will be able to justify their

existence

and

carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. The Government of India also failed to give any reasons in support or its order rejecting the revision application. But we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector. The reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given Page 13 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application. We hope and trust that in future the Customs authorities will be more careful in

adjudicating

upon

the proceedings which come before them and pass properly reasoned orders, so that those who are affected by such orders are assured that their case has received proper consideration at the hands of the Customs authorities and the validity of the adjudication made by the Customs authorities can also be satisfactorily tested in a superior tribunal or court. In fact, it would be desirable that in cases arising under Customs and Excise laws an independent quasi-judicial tribunal, like the Income-tax Appellate Tribunal or the Foreign Exchange Regulation Appellate Board, is set up which would finally dispose of appeals and revision applications under these laws instead of leaving the determination of such appeals and revision applications to the Government

India.

An Page 14 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 independent

quasi-judicial tribunal would definitely inspire greater confidence in the public mind.” 8.The Hon’ble Supreme Court has time and again held for significance and importance of recording reasons by the quasi judicial authority and every quasi judicial orders supported by the reasons: (i) In case of Sant Lal Gupta And Others Vs. Modern Cooperative Group Housing Society Limited And Others reported in (2010) 13 SCC 336, it is observed as under: “27. It is a settled legal proposition

that

not

only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of Page 15 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the 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 about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind." The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless.

Reasons

substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Page 16 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. (Vide: State of Orissa v. Dhaniram Luhar AIR 2004 SC 1794; State of Rajasthan v. Sohan Lal & Ors. (2004) 5 SCC 573; Vishnu Dev Sharma v. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. v. Sales Tax Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi AIR 2008 SC 2026;

U.P.S.R.T.C.

v.Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal v. State of Haryana & Ors. (2009) 3 SCC 258; State of Himachal Pradesh v.Sada Ram & Anr. (2009) 4 SCC 422; and The Secretary & Curator, Victoria Memorial

Hall

Howrah Ganatantrik Nagrik Samity & Ors., AIR 2010 SC 1285).” (ii) In case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney And Others reported in (2009) 4 SCC 240, it is observed as under: Page 17 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 “5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover's case(supra) has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority. 6. The view we are taking was also taken by this Court in Divisional Forest Officer vs. Madhusudan Rao, JT 2008 (2) SC 253 (vide para 19), and in Madhya Pradesh Industries Ltd. vs. Union of India, AIR 1966 SC 671, siemens Engineering & Manufacturing Co. Ltd. vs. Union of India, AIR 1976 SC 1785 (vide para 6), etc. Page 18 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 7. In the present case, since the appellate authority's order does not contain any reaons, it does not show any application of mind. 8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N.Mukherjee vs. Union of India reported in (1990) 4 SCC 594, is that people must have confidence in the judicial

quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation. 9. No doubt, in S.N.Mukherjee's case (supra), it has been observed (vide para 36) that: "36. ..The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional Page 19 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 authority agrees with the reasons contained in the order under challenge." The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one line orders stating that they agree with the view of the lower authority. 10. For the same reason, the decision of this Court in State of Madras vs. Srinivasan, AIR 1966 SC 1827 (vide para 15) has also to be understood as explained by us above.” (iii) In case of Union of India And Others Vs. Jai Prakash Singh And Another reported in (2007) 10 SCC 712, it is observed as under: Page 20 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 “6. As rightly submitted by learned counsel for the appellants, without indicating any reason, the High Court has described the policy to be arbitrary. Interestingly, the writ petitioner had not challenged the legality of the policy. In fact, he was claiming benefit under the policy. Unfortunately,

the

High

Court travelled beyond the pleadings. It did not grant any opportunity to the present appellant to file even counter affidavit and by a non-reasoned order struck down the policy. The order of the High Court has been stayed by this Court on 1.9.1999. 7.”11. Reasons introduce clarity 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 judgment not sustainable. 12. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union, [1971] 1 All E.R. 1148 observed "The giving of reasons is one of the fundamentals Page 21 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree, (1974) LCR 120 it was observed: “Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". 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. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. the "inscrutable face of a Page 22 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.” (iv) In case of Uttar Pradesh Avas Evam Vikas Parishad Vs. Sheo Narain Kushwaha And Others reported in (2011) 6 SCC 456, it is observed as under: “6.Order 41 of the Code regulates appeals from original decrees. Rule 11 of Order 41 relates to power to dismiss appeals without sending notice to lower court and sub-rules (1) and (4) thereof, relevant for our purpose, are extracted below : "11. Power to dismiss appeal without sending notice to Lower Court.- (1) The Appellate Court after fixing a day for hearing the appellant or his

pleader

and

hearing

him accordingly if he appears on that day, may dismiss the appeal. xxx xxx xxx (4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a Page 23 of 24

C/SCA/4108/2019 ORDER DATED: 09/03/2023 decree shall be drawn up in accordance with the judgment."” 9.In view of the above settled legal position, without entering into the merits of the matter, the impugned order passed by the SSRD is hereby quashed and set aside and the matter is remanded back to the SSRD to pass a fresh de novo order after recording the reasons in support thereof in accordance with law. It is clarified that this Court has not considered the merits of the matter, but the impugned order is quashed and set aside only for lack of recording of reasons by the SSRD. Such exercise shall be completed within 12 weeks from the receipt of the copy of this order. The petition is accordingly disposed of. (BHARGAV D. KARIA, J) URIL RANA Page 24 of 24