Varghese Samual v. Pathanamthitta Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 01ST DAY OF JULY 2019 / 10TH ASHADHA, 1941** ## **WP(C).No.17743 of 2019** ## **PETITIONER/S:** **VARGHESE SAMUAL AGED 52 YEARS S/O. MATHAI VARGHESE, THEKKUMMOOTTIL IDAPPURAYIL (H), KUMBAZHA P. O., PATHANAMTHITTA VILLAGE, KOZHECHERRY TALUK, PATHANAMTHITTA DISTRICT - 689 645** **BY ADVS. SRI.MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH** ## **RESPONDENT/S:** **1 THE PATHANAMTHITTA MUNICIPALITY REPRESENTED BY ITS SECRETARY, PATHANAMTHITTA DISTRICT - 689 645 2 THE SECRETARY, PATHANAMTHITTA MUNICIPALITY, PATHANAMTHITTA - 689 645 3 THE REVENUE DIVISIONAL OFFICER ADOOR, PATHANAMTHITTA - 691 523 4 THE TAHASILDAR TALUK OFFICE, KOZHENCHERRY, PATHANAMTHITTA - 689 645 5 THE VILLAGE OFFICER PATHANAMTHITTA VILLAGE, PATHANAMTHITTA DISTRICT - 689 645 6 RENJU OOMMEN AGED 34 YEARS S/O. LATE OOMMEN VARGHESE, MANAGER, MAR PHILEXINOS VOCATIONAL AND HIGHER SECONDARY SCHOOL, KUMBAZHA P. O., PATHANAMTHITTA - 689 645** WP(C).No.17743 of 2019 2 **7 DEEPU OOMMEN AGE NOT KNOWN TO THE PETITIONER, S/O. LATE OOMMEN VARGHESE, PRINCIPAL, MAR PHILEXINOS VOCATIONAL AND HIGHER SECONDARY SCHOOL, KUMBAZHA P. O., PATHANAMTHITTA - 689 645** **8 T. V. THOMAS AGED 54 YEARS S/O. MATHAI VARGHESE, RESIDING AT THEKKUMMOOTTIL IDAPPURAYIL (H), KUMBAZHA P. O., PATHANAMTHITTA VILLAGE, KOZHECHERRY TALUK, PATHANAMTHITTA DISTRICT - 689 645** **BY ADV. SRI.V.PHILIP MATHEW** ## **OTHER PRESENT:** **SRI GEORGE ABRAHAM PACHOYIL SC , SRI V PHILIP MATHEW R6R7** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.17743 of 2019 3 ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P16 order dated 13.02.2019 and Ext.P18 notice dated 15.06.2019 issued by the second respondent, who is the Secretary of the first respondent Municipality, as the same is passed in violation of Ext.P4 order dated 05.07.2016 and Ext.P15 common judgment dated 07.11.2018 of this Court in W.P.(C)No.12090/2018 and W.P.(C)No.16143/2018, and without hearing the petitioner and other affected persons. The petitioner has also sought for a declaration that the issue pertaining to the complaint of sixth respondent, in respect of the right to drain water from the school property through property of the petitioner can only be adjudicated by a competent Civil Court; and a writ of mandamus commanding the second respondent to consider Ext.P19 representation by affording adequate opportunity of hearing to the petitioner and other affected persons, within a time WP(C).No.17743 of 2019 4 frame to be fixed by this Court. 2. On 28.06.2019, when this writ petition came up for consideration, the learned Standing Counsel for the Municipality took notice on admission for respondents 1 and 2. The learned Government Pleader took notice on admission for respondents 3 to 5. Urgent notice on admission by special messenger was ordered to respondents 6 to 8, returnable by this date. The learned Standing Counsel was directed to get instructions. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for respondents 1 and 2, the learned Government Pleader appearing for respondents 3 to 5 and Sri.Philip Mathew, the learned counsel, who entered appearance for the respondents 6 and 7. Service of notice is not complete on the eighth respondent, who is none other than the brother of the petitioner. Considering the nature of relief proposed to be granted, the service of notice on the eighth respondent is dispensed with. WP(C).No.17743 of 2019 5 4. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on EXt.P16 order dated 13.2.2019 issued by the second respondent. Ext.P18 notice, which is under challenge in this writ petition, is only consequential to Ext.P16 order. 5. Ext.P16 order is one issued by the second respondent, pursuant to the direction contained in Ext.P15 common judgment of this Court dated 7.11.2018 in W.P.(C) No.12090/2018 and W.P.(C)No.16143/2018. The operative portion of the said judgment reads thus: “In that view of the matter, the orders passed by the Municipal Secretary dated 5.8.2017 and the Municipal Engineer dated 11.5.2018 are treated as show cause notices and the petitioners in the writ petitions are given the liberty to file suitable representations/objections to the said notices within three weeks from the date of receipt of a copy of this judgment, which, if received, shall be considered by the 2[nd] respondent, i.e., the Secretary of the Municipality within two months thereafter, after providing sufficient opportunity of participation and hearing to the petitioners in the writ petitions and all other interested persons. If required, the Municipal WP(C).No.17743 of 2019 6 Secretary will be at liberty to seek the assistance of any revenue officers, and if any such request is made, necessary assistance shall be given by the revenue authorities to the Municipal Secretary in order to decipher the issues raised by the rival parties.” 6. Ext.P15 judgment of this Court was under challenge in W.A.Nos.323 and 326 of 2019 filed by the petitioner, along with the eighth respondent. Those writ appeals were ended in dismissal by Ext.P17 judgment dated 25.2.2019, taking note of the issuance of Ext.P16 order dated 13.2.2019 of the second respondent. Ext.P16 order dated 13.2.2019 of the second respondent reads thus: ## ÄàøáÎÞÈ¢ WP(C)12090/18 ÈOV ÕßÇßÈcÞÏ¢ È¿MÞAáKÄá Ø¢Ìtߺîí ÌÙá. çµø{ èÙçAÞ¿ÄßÏßW 232/2019, 326/19 ¦Ïß ùßGí ¥MßW ËÏW æºÏñßGáUÄᢠ¦ÏÄí ©JøÕí ¦µáKÄáÕæø WP(C)12090/18 ÈOV ©JøÕí ÈßVJßÕÏíAÃæÎKí ®ÄßVµfß ¥çÉfߺîßøáKá.å®KÞW ùßGí ËÏW æºÏñÄá Ø¢Ìtߺîí ÏÞæÄÞøá çø¶µ{ᢠÙÞ¼øÞAßÏßGßÜïÞJ ØÞÙºøcJßW WP(C) 12090/18 ÈOV ÕßÇßÈcÞÏ dɵÞø¢ ³¿ ÉáÈØíÅÞÉߺîí ÈàæøÞÝáAí Øá·ÎÎÞçAIÄÞæÃKí ÄàøáÎÞÈߺîá. 7. **In Malu M. v. State of Kerala [2015 KHC** **590]** , this Court held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure WP(C).No.17743 of 2019 **==> picture [7 x 7] intentionally omitted <==** fair play in action. The recording of reasons by an administrative or quasi judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. Paragraphs 15 to 20 of the said decision read thus: “15. In **Breen v. Amalgamated Engineering Union (1971 (1) All. E.R. 1148)** Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamental of good administration. In **Alexander Machinery (Dudley) Ltd v. Crabtree, 1974 ICR 120** it was observed that, 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. 16. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing Director, United Commercial Bank and others V. P.C.Kakkar, (2003) 4 SCC 364)** held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision WP(C).No.17743 of 2019 8 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. 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 sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance. 17. A Constitution Bench of the Apex Court has laid down in **Krishna Swami v. Union of India and Others (1992 (4) SCC 605)** that, undoubtedly, in a parliamentary democracy governed by rule of law, any action, decision or order of any statutory/public authority/functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21 of the Constitution of India. 18. The object underlying the rules of natural justice is WP(C).No.17743 of 2019 9 to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be elaborate as in the decision of a Court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasijudicial authority. 19. In Ext.P15 judgment, this Court observed that, the decision of the Government for enhancement of retirement age of KSFE employees do not depend upon any policy of the Government, which has to be taken independently based on the resolution passed by the Board of Directors of the KSFE After setting aside Exts.P6 and P7, the Government was directed to take a decision on Ext.P4 resolution of the Board of Directors of the KSFE, within two months from the date of receipt of a copy of the Judgment. Though it has been stated in Ext.P16 order that, the Government have re-examined WP(C).No.17743 of 2019 10 the matter on the basis of the observations contained in Ext.P15 judgment and that, after considering all the aspects involved in the issue, have decided not to enhance the present retirement age of KSFE employees, the said order does not contain any reason whatsoever for taking such a decision. 20. In B.A.Linga Reddy v. Karnataka State Transport Authority, 2014 KHC 4816 : 2015 (4) SCC 515 : AIR 2015 SC 767, the Apex Court after referring to its earlier judgments on the subject has reiterated that, the rule of reason is anti-thesis to arbitrariness in action and is a necessary concomitant of the principles of natural justice. If a statutory or public authority/functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violating Art. 14 and Art.21 of the Constitution of India. It is the duty of such authority/functionary to give reasons and to pass a speaking order that excludes arbitrariness in action. Referring to the facts of that case, the Apex Court noticed that, there is no consideration of the objections except mentioning the arguments of the rival parties and that objections both factual and legal have not been considered much less reasons assigned to overrule them.” 8. Viewed in the light of the law laid down in the decision referred to supra Ext.P16 order dated 13.2.2019 of the second respondent, which do not reflect a proper WP(C).No.17743 of 2019 11 application of mind by the said respondent on the relevant issues can only be termed as an order passed in violation of principles of natural justices. On that sole ground, Ext.P16 order is liable to be set aside. So also, the consequential notice, i.e., Ext.P18 notice dated 15.6.2019. In the result, this writ petition is disposed of by setting aside Ext.P16 order and Ext.P18 consequential notice, for the aforesaid reason, and by directing the second respondent to reconsider the matter, in terms of the directions contained in Ext.P15 judgment of this Court dated 7.11.2018 in W.P. (C)No.12090/2018 and W.P.(C)No.16143/2018, and take an appropriate decision, with notice to the petitioner and also to respondents 6 to 8. A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of three weeks from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K.NARENDRAN JUDGE** shg WP(C).No.17743 of 2019 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE PARTITION DEED NO.1553/1986 OF PATHANAMTHITTA SRO EXHIBIT P2 THE TRUE COPY OF THE PARTITION DEED NO.75/2015 OF PATHANAMTHITTA SRO EXHIBIT P3 THE TRUE COPY OF THE LAND TAX RECEIPT DATED 12.03.2018 OF PATHANAMTHITTA VILLAGE EXHIBIT P4 THE TRUE COPY OF THE ORDER DATED 05.07.2016 IN COMPLAINT NO.662/2016 OF LEARNED OMBUDSMAN FOR LSGD INSTITUTIONS EXHIBIT P5 THE TRUE COPIES OF THE OBJECTIONS FILED BY THE PETITIONER AND HIS BROTHER, T.V. THOMAS EXHIBIT P6 THE TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.12.2016 EXHIBIT P7 THE TRUE COPY OF THE APPROVED BUILDING PLAN AS PER B.A.NO.305/85-86 DATED 02.01.1986** **EXHIBIT P8 THE TRUE COPY OF THE APPROVED BUILDING PLAN AS PER B.A.NO.356/15-16 DATED 25.01.2016 ALONG WITH OCCUPANCY CERTIFICATE DATED 05.01.2017** **EXHIBIT P9 THE TRUE COPY OF THE OCCUPANCY CERTIFICATE VIDE FILE NO.E-2/3614/2016 DATED 05.07.2017 ISSUED BY THE 2ND RESPONDENT TO 8TH RESPONDENT** **EXHIBIT P10 THE TRUE COPY OF THE CERTIFICATE NO.2540/2016 DATED 22.06.2016 ISSUED BY THE 5TH RESPONDENT** WP(C).No.17743 of 2019 13 **EXHIBIT P11** **THE TRUE COPY OF THE REPORT VIDE S- 4697/16 DATED 29.12.2016 ISSUED BY THE OFFICE OF 4TH RESPONDENT UNDER RTI** - **EXHIBIT P12** - **THE PHOTOGRAPHS DEPICTING THE TRUE STATE OF AFFAIRS INCLUDING LIE OF PROPERTY, ABSENCE OF ANY WATER CHANNEL** - **EXHIBIT P13 THE TRUE COPY OF THE ORDER NO.E28656/2017 DATED 05.08.2017 OF THE 2ND RESPONDENT** - **EXHIBIT P14 THE TRUE COPY OF THE NOTICE NO.E28656/2016 DATED 11.05.2018 OF THE 2ND RESPONDENT** - **EXHIBIT P15 THE TRUE COPY OF THE COMMON JUDGMENT DATED 07.11.2018 WAS PASSED IN W.P.(C) 12090/2018 AND W.P.(C) 16143/2018 OF THIS HON'BLE COURT** - **EXHIBIT P16 THE LETTER VIDE E2-8656/16 DATED 13.02.2019 ISSUED BY THE 2ND RESPONDENT INFORMING THE DECISION IS TAKEN TO DIRECT RESTORATION OF WATER CHANNEL AS DIRECTED IN THE EXT.P15 JUDGMENT.** - **EXHIBIT P17 THE TRUE COPY OF THE COMMON JUDGMENT DATED 25.02.2019 IN W.A.NO.323/2019 AND W.A. NO.326/2019 OF THIS HON'BLE COURT** - **EXHIBIT P18 THE TRUE COPY OF THE NOTICE NO.E28656/2016 DATED 15.06.2019 ON 21.06.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** - **EXHIBIT P19 THE TRUE COPY OF THE REPLY/ REPRESENTATION DATED 24.06.2019 TO EXT.P18 ALONG WITH RECEIPT DATED 25.06.2019**