Full Judgment Text
21 .
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9424/2009
% Judgment dated 20.04.2010
LALIT KUMAR VIMAL ..... Petitioner
Through : Ms. Richa Kapoor, Adv.
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through : Ms. Alka Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether the Reporters of local papers may be allowed to see
the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
G.S.SISTANI, J. ( ORAL )
1. Rule. With the consent of counsel for the parties, writ petition is set
down for final hearing and disposal.
2. Brief facts of the case, as set out in the present petition, are that in
the year 1996 DDA announced its expandable housing scheme and
invited applications for allotment of 3500 expandable houses. Two
categories of houses were being offered – Type A, comprising of one
room set; and Type B, comprising of 2 or three room set. As per the
table formulated in the brochure, DDA had fixed different cost for
the houses depending on the colony. The petitioner with spouse
made an application to the DDA for allotment of Type A category flat
and paid the registration amount in the sum of Rs.7500/- vide Bank
Draft No.313424 dated 9.10.1996. On 21.3.1997 petitioner was
allotted a flat bearing No.112, Pocket 12, Sector 22, Rohini, Delhi
under the expandable housing scheme.
3. It is the case of the petitioner that even though the draw of lots in
respect of the petitioner‟s flat has been held on 21.3.1997 the
respondent delayed the issuance of demand-cum-allotment letter,
which was issued only in September, 1998. Vide allotment letter
with block dates dated 1.9.1998 – 10.9.1998, a sum of
Rs.4,50,468.80 was demanded from the petitioner along with
confirmation charges in the sum of Rs.15,000/- which were to be
paid by 10.10.1998. The petitioner deposited the confirmation
charges in the sum of Rs.15,000/- within the time allowed, however,
did not deposit Rs.4,50,468.80.
4. According to the petitioner, the amount of Rs. 4,50,468.80 was in
excess of the tentative disposal cost, which was mentioned as
Rs.3,87,700/- in the brochure. The petitioner is stated to have
visited the site and was shocked to learn that the basic amenities
like water, electricity, sewage, etc., were not available in the flats
and the roads were yet to be constructed.
5. Learned counsel for the petitioner submits that similarly situated
allottees filed a batch of writ petitions in the High Court seeking a
writ of mandamus directing DDA to adhere to cost mentioned in the
brochure. All the writ petitions were clubbed together and were
listed for final hearing. Counsel further submits that the petitioner
had also filed a writ petition being WP(C)No.3146/1999 seeking
similar reliefs. On 27.11.2003, a Single Judge of this Court while
disposing of Raj Kumar Vs. DDA , WP(C)No.214/1999, [batch
consisting of three writ petitions] of similarly situated allottees
directed the petitioners to pay interest @ 12% per annum on 50 %
of the amount from the date of demand-cum-allotment letter and
100% of the amount from the date the amenities were made
available. It was also directed that in the alternate, the petitioners
could also opt within 45 days for payment on the basis of current
cost. Accordingly, the W.P.(C)No.1999 filed by the petitioner was
also decided by the this Court vide order 19.12.2003 in terms of the
aforesaid order dated 27.11.2003. Petitioner exercised his option
vide his representation dated 9.11.2004 to opt for current cost.
6. Learned counsel for the petitioner submits that the petitioner made
a representation to the DDA on 9.11.2004 beyond the period of 45
days and approximately 72 other applicants opted for allotment at
current cost. Although, admittedly, the name of the petitioner was
included at Sl. No.9 in the list prepared by the DDA of 72 applicants,
who were similarly placed, but the petitioner did not receive any
demand-cum-allotment letter. Counsel for the petitioner also
submits that similarly situated persons to whom demand letters
were issued, had, inter alia , challenged the costing of the DDA
pursuant to demand-cum-allotment letter issued besides other
reliefs. The batch of said writ petitions were disposed of by a
common judgment rendered by a Single Judge of this Court in the
case of Madan Lal Nayak Vs. Delhi Development Authority ,
WP(C)No.3257/2007, [batch comprising of 18 writ petitions] on
19.03.2008. Counsel next submits that after pronouncement of the
judgment in the case of Raj Kumar Vs. Delhi Development
Authority , CWP NO.214/1999 on 27.11.2003, DDA was to issue a
fresh demand-cum-allotment letter to the petitioners.
7. It is contended by counsel for the petitioner that despite various
representations having been made by the petitioner to the DDA,
demand-cum-allotment letter was not issued to the petitioner.
8. Learned counsel for the petitioner submit that the same very issue
was considered by this Court in WP(C)No.3257/2007 and other
connected matters on 19.03.2008. While disposing of these
connected matters, this Court had issued the following directions:
“ 8. In view of the above facts and the statements made by
learned counsel for the parties, the following directions are
issued:
(i) DDA will make calculation and issue demand cum
allotment letters to the petitioners on the basis of
calculation sheet shown in the Court today, within
30 days. The petitioners will be liable to pay
interest @ 12% till the date when demand cum
allotment letter is issued and payment will be
made in terms of the payment.
(ii) DDA will be entitled to verify and examine
genuineness of the case of the petitioners. ”
9. Learned counsel for the petitioner submits that second direction,
which was issued as similar objection with regard to genuineness
was raised by the DDA was in the light of very same objection,
which was raised by the DDA. In the light of this objection, this Court
had directed that the DDA would be entitled to verify and examine
the genuineness of the case of the petitioners. Counsel further
submit that valuable rights of the petitioners could not have been
determined by the respondents unilaterally without issuing a show
cause notice and without granting a hearing in the matter.
10. Counsel for the petitioner submits that the present case is fully
covered in fact and law by the decision rendered by this Court in the
case of Sunita Vs. D.D.A. , W.P.(C)No.3556/2008 and in the case of
Sh. Anil Kumar Vs. DDA , W.P.(C)No.7809/2009.
11. Learned counsel for the respondent – DDA has opposed this petition
on the ground that the case of the petitioner was not considered as
the representation/application received by them, did not seem to be
genuine and the application was not signed by the allottee. Thus,
the DDA did not deem it proper to consider the application and the
same stand rejected on this ground alone. Counsel for the DDA is
unable to show that the facts of the present case are in any way
different to the facts in the case of Sunita Vs. D.D.A. (supra) and
in the case of Sh. Anil Kumar Vs. DDA (supra). Counsel for the
DDA, however, submits that this Court had decided both the above
matters based on an earlier decision which was rendered on the
basis of concession given by counsel for the DDA.
12. Learned counsel for the petitioner submit that neither any show
cause notice was issued to the petitioner nor any opportunity of
hearing was granted to the petitioner to enable him to clear the
doubts of the DDA.
13. I have heard counsel for the parties. The petitioner has been locked
in a legal battle against the DDA since the year 1998 when the first
demand-cum-allotment letter was issued. Today, it is not disputed
that before rejecting the application of the petitioner, the petitioner
was neither issued any show cause notice nor asked to remain
present along with supporting documents in support of his
identification. It is also not disputed that the petitioner had filed the
earlier writ petition, which was disposed of by an order of this Court
dated 19.12.2003.
14. In the case of Canara Bank and Others v. Debasis Das and
Others, reported at (2003) 4 SCC 557, the Supreme Court of India
has held that:
“13. Natural justice is another name for common-sense 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 common-sense 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.
14. The expressions “natural justice” and “legal justice” do not
present a watertight 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 litigant‟s defence.
15. The 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 apprise the
party determinatively of 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
2
of Works the principle was thus stated: (ER p. 420)
“[E]ven God himself did not pass sentence upon Adam before
he was called upon to make his defence. „Adam‟ (says God), „where
art thou? Hast thou not eaten of the tree whereof, I commanded
thee that thou shouldest 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.
Principles 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.
17. What is meant by the term “principles of natural justice” is not
easy to determine. Lord Summer (then Hamilton, L.J.) in R. v. Local
3
Govt. Board (KB at p. 199) described the phrase as sadly
lacking in precision. In General Council of Medical Education &
4
Registration of U.K. v. Spackman Lord Wright observed that it was
not desirable to attempt “to force it into any Procrustean 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.
18. Lord Wright referred to the leading cases on the subject. The
5
most important of them is Board of Education v. Rice where Lord
Loreburn, L.C. observed as follows: (All ER p. 38 C-F)
“Comparatively recent statutes have extended, if they have not
originated, the practice of imposing upon departments or officers 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 add that in doing either they must act in good faith
and listen fairly 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 their determination, either upon law or upon
fact. But if the court is satisfied either that the Board have not
acted judicially in the way which I have described, or have not
determined the question which they are 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
6
Selbourne, L.O. in Spackman v. Plumstead District Board of Works
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 oftquoted phrase “justice should not only be done,
but should be seen to be done”.
19. Concept 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 facts and circumstances of
that case, the framework 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. The 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.
20. Natural justice has been variously defined by different Judges. A
7
few instances will suffice. In Drew v. Drew and Lebura (Macq at p.
8), Lord Cranworth defined it as “universal justice”. In James
8
Dunber Smith v. Her Majesty the Queen (AC at p. 623) Sir
Robort P. Collier, speaking for the Judicial Committee of the Privy
Council, used the phrase “the requirements of substantial justice”,
while in Arthur John Spackman v. Plumstead District Board of
6
Works (AC at p. 240), the Earl of Selbourne, S.C. preferred the
phrase “the substantial requirement of justice”. In Vionet v. Barrett
9 (LJRD at p. 41), Lord Esher, M.R. defined natural justice as “the
natural sense of what is right and wrong”. While, however, deciding
10
Hookings v. Smethwick Local Board of Health Lord Esher, M.R.
9
instead of using the definition given earlier by him in Vionet case
chose to define natural justice as “fundamental justice”. In Ridge v.
11
Baldwin (QB at p. 578), Harman, L.J., in the Court of
Appeal countered natural justice with “fair play in action”, a phrase
12
favoured by Bhagwati, J. in Maneka Gandhi v. Union of India . In
13
H.K. (An Infant), Re (QB at p. 630), Lord Parker, C.J. preferred
to describe natural justice as “a duty to act fairly”. In Fairmount
14
Investments Ltd. v. Secy. of State for Environment Lord Russell
of Killowen somewhat picturesquely described natural justice as “a
fair crack of the whip” while Geoffrey Lane, L.J. in R. v. Secy. of
15
State for Home Affairs, ex p Hosenball preferred the homely
phrase “common fairness”.
21. How 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 Earl of
16
Derby‟s case 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 et 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 et 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 altera acquum
licet dixerit, haud acquum fecerit” 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”
17
[see Boswel‟s case (Co Rep at p. 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 (sic
open). All that is done is to vacate the order assailed by virtue of its
inherent defect, but the proceedings are not terminated.”
15. Taking into consideration the facts of this case and applying the
principles laid down, I find force in the submission made by counsel
for the petitioner that the order of cancellation could not have been
passed without following the principles of natural justice. In this
case the petitioner has been agitating his rights from the year 1998,
and at this crucial juncture, when all issues stood resolved, it is not
open to the DDA to reject the case of the petitioner on the ground
that his identity is in doubt without following the principles of
natural justice and issuance of show cause notice. This Court while
disposing of Writ Petition 7809/2009 and other connected matters,
on similar issue, issued necessary directions by which DDA was
entitled to verify and examine the genuineness of the case of the
petitioner. Nothing has been produced on record to satisfy this
court how the genuineness of the petitioner was ascertained. It is
for this reason that courts have laid stress that there must be
protection of the rights of the individual which cannot be
determined by any arbitrary procedure which may be adopted. The
petitioner could not have been condemned unheard. Consequently,
the petitioner must succeed since the only ground taken by the DDA
for not issuing the demand-cum-allotment letter is the identity of
the petitioner. The petitioner shall appear before the Deputy
Director (Housing), DDA, in person along with all original supporting
documents including proof of identity, upon being informed by the
DDA about the time and date at the address mentioned in the writ
petition. Once the DDA is satisfied about the genuineness of the
petitioner, the demand-cum-allotment letters shall be issued in
accordance with law.
16. Petition as well as all pending applications stand disposed of.
G.S. SISTANI, J.
April 20, 2010
„msr‟
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9424/2009
% Judgment dated 20.04.2010
LALIT KUMAR VIMAL ..... Petitioner
Through : Ms. Richa Kapoor, Adv.
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through : Ms. Alka Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether the Reporters of local papers may be allowed to see
the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
G.S.SISTANI, J. ( ORAL )
1. Rule. With the consent of counsel for the parties, writ petition is set
down for final hearing and disposal.
2. Brief facts of the case, as set out in the present petition, are that in
the year 1996 DDA announced its expandable housing scheme and
invited applications for allotment of 3500 expandable houses. Two
categories of houses were being offered – Type A, comprising of one
room set; and Type B, comprising of 2 or three room set. As per the
table formulated in the brochure, DDA had fixed different cost for
the houses depending on the colony. The petitioner with spouse
made an application to the DDA for allotment of Type A category flat
and paid the registration amount in the sum of Rs.7500/- vide Bank
Draft No.313424 dated 9.10.1996. On 21.3.1997 petitioner was
allotted a flat bearing No.112, Pocket 12, Sector 22, Rohini, Delhi
under the expandable housing scheme.
3. It is the case of the petitioner that even though the draw of lots in
respect of the petitioner‟s flat has been held on 21.3.1997 the
respondent delayed the issuance of demand-cum-allotment letter,
which was issued only in September, 1998. Vide allotment letter
with block dates dated 1.9.1998 – 10.9.1998, a sum of
Rs.4,50,468.80 was demanded from the petitioner along with
confirmation charges in the sum of Rs.15,000/- which were to be
paid by 10.10.1998. The petitioner deposited the confirmation
charges in the sum of Rs.15,000/- within the time allowed, however,
did not deposit Rs.4,50,468.80.
4. According to the petitioner, the amount of Rs. 4,50,468.80 was in
excess of the tentative disposal cost, which was mentioned as
Rs.3,87,700/- in the brochure. The petitioner is stated to have
visited the site and was shocked to learn that the basic amenities
like water, electricity, sewage, etc., were not available in the flats
and the roads were yet to be constructed.
5. Learned counsel for the petitioner submits that similarly situated
allottees filed a batch of writ petitions in the High Court seeking a
writ of mandamus directing DDA to adhere to cost mentioned in the
brochure. All the writ petitions were clubbed together and were
listed for final hearing. Counsel further submits that the petitioner
had also filed a writ petition being WP(C)No.3146/1999 seeking
similar reliefs. On 27.11.2003, a Single Judge of this Court while
disposing of Raj Kumar Vs. DDA , WP(C)No.214/1999, [batch
consisting of three writ petitions] of similarly situated allottees
directed the petitioners to pay interest @ 12% per annum on 50 %
of the amount from the date of demand-cum-allotment letter and
100% of the amount from the date the amenities were made
available. It was also directed that in the alternate, the petitioners
could also opt within 45 days for payment on the basis of current
cost. Accordingly, the W.P.(C)No.1999 filed by the petitioner was
also decided by the this Court vide order 19.12.2003 in terms of the
aforesaid order dated 27.11.2003. Petitioner exercised his option
vide his representation dated 9.11.2004 to opt for current cost.
6. Learned counsel for the petitioner submits that the petitioner made
a representation to the DDA on 9.11.2004 beyond the period of 45
days and approximately 72 other applicants opted for allotment at
current cost. Although, admittedly, the name of the petitioner was
included at Sl. No.9 in the list prepared by the DDA of 72 applicants,
who were similarly placed, but the petitioner did not receive any
demand-cum-allotment letter. Counsel for the petitioner also
submits that similarly situated persons to whom demand letters
were issued, had, inter alia , challenged the costing of the DDA
pursuant to demand-cum-allotment letter issued besides other
reliefs. The batch of said writ petitions were disposed of by a
common judgment rendered by a Single Judge of this Court in the
case of Madan Lal Nayak Vs. Delhi Development Authority ,
WP(C)No.3257/2007, [batch comprising of 18 writ petitions] on
19.03.2008. Counsel next submits that after pronouncement of the
judgment in the case of Raj Kumar Vs. Delhi Development
Authority , CWP NO.214/1999 on 27.11.2003, DDA was to issue a
fresh demand-cum-allotment letter to the petitioners.
7. It is contended by counsel for the petitioner that despite various
representations having been made by the petitioner to the DDA,
demand-cum-allotment letter was not issued to the petitioner.
8. Learned counsel for the petitioner submit that the same very issue
was considered by this Court in WP(C)No.3257/2007 and other
connected matters on 19.03.2008. While disposing of these
connected matters, this Court had issued the following directions:
“ 8. In view of the above facts and the statements made by
learned counsel for the parties, the following directions are
issued:
(i) DDA will make calculation and issue demand cum
allotment letters to the petitioners on the basis of
calculation sheet shown in the Court today, within
30 days. The petitioners will be liable to pay
interest @ 12% till the date when demand cum
allotment letter is issued and payment will be
made in terms of the payment.
(ii) DDA will be entitled to verify and examine
genuineness of the case of the petitioners. ”
9. Learned counsel for the petitioner submits that second direction,
which was issued as similar objection with regard to genuineness
was raised by the DDA was in the light of very same objection,
which was raised by the DDA. In the light of this objection, this Court
had directed that the DDA would be entitled to verify and examine
the genuineness of the case of the petitioners. Counsel further
submit that valuable rights of the petitioners could not have been
determined by the respondents unilaterally without issuing a show
cause notice and without granting a hearing in the matter.
10. Counsel for the petitioner submits that the present case is fully
covered in fact and law by the decision rendered by this Court in the
case of Sunita Vs. D.D.A. , W.P.(C)No.3556/2008 and in the case of
Sh. Anil Kumar Vs. DDA , W.P.(C)No.7809/2009.
11. Learned counsel for the respondent – DDA has opposed this petition
on the ground that the case of the petitioner was not considered as
the representation/application received by them, did not seem to be
genuine and the application was not signed by the allottee. Thus,
the DDA did not deem it proper to consider the application and the
same stand rejected on this ground alone. Counsel for the DDA is
unable to show that the facts of the present case are in any way
different to the facts in the case of Sunita Vs. D.D.A. (supra) and
in the case of Sh. Anil Kumar Vs. DDA (supra). Counsel for the
DDA, however, submits that this Court had decided both the above
matters based on an earlier decision which was rendered on the
basis of concession given by counsel for the DDA.
12. Learned counsel for the petitioner submit that neither any show
cause notice was issued to the petitioner nor any opportunity of
hearing was granted to the petitioner to enable him to clear the
doubts of the DDA.
13. I have heard counsel for the parties. The petitioner has been locked
in a legal battle against the DDA since the year 1998 when the first
demand-cum-allotment letter was issued. Today, it is not disputed
that before rejecting the application of the petitioner, the petitioner
was neither issued any show cause notice nor asked to remain
present along with supporting documents in support of his
identification. It is also not disputed that the petitioner had filed the
earlier writ petition, which was disposed of by an order of this Court
dated 19.12.2003.
14. In the case of Canara Bank and Others v. Debasis Das and
Others, reported at (2003) 4 SCC 557, the Supreme Court of India
has held that:
“13. Natural justice is another name for common-sense 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 common-sense 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.
14. The expressions “natural justice” and “legal justice” do not
present a watertight 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 litigant‟s defence.
15. The 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 apprise the
party determinatively of 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
2
of Works the principle was thus stated: (ER p. 420)
“[E]ven God himself did not pass sentence upon Adam before
he was called upon to make his defence. „Adam‟ (says God), „where
art thou? Hast thou not eaten of the tree whereof, I commanded
thee that thou shouldest 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.
Principles 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.
17. What is meant by the term “principles of natural justice” is not
easy to determine. Lord Summer (then Hamilton, L.J.) in R. v. Local
3
Govt. Board (KB at p. 199) described the phrase as sadly
lacking in precision. In General Council of Medical Education &
4
Registration of U.K. v. Spackman Lord Wright observed that it was
not desirable to attempt “to force it into any Procrustean 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.
18. Lord Wright referred to the leading cases on the subject. The
5
most important of them is Board of Education v. Rice where Lord
Loreburn, L.C. observed as follows: (All ER p. 38 C-F)
“Comparatively recent statutes have extended, if they have not
originated, the practice of imposing upon departments or officers 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 add that in doing either they must act in good faith
and listen fairly 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 their determination, either upon law or upon
fact. But if the court is satisfied either that the Board have not
acted judicially in the way which I have described, or have not
determined the question which they are 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
6
Selbourne, L.O. in Spackman v. Plumstead District Board of Works
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 oftquoted phrase “justice should not only be done,
but should be seen to be done”.
19. Concept 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 facts and circumstances of
that case, the framework 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. The 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.
20. Natural justice has been variously defined by different Judges. A
7
few instances will suffice. In Drew v. Drew and Lebura (Macq at p.
8), Lord Cranworth defined it as “universal justice”. In James
8
Dunber Smith v. Her Majesty the Queen (AC at p. 623) Sir
Robort P. Collier, speaking for the Judicial Committee of the Privy
Council, used the phrase “the requirements of substantial justice”,
while in Arthur John Spackman v. Plumstead District Board of
6
Works (AC at p. 240), the Earl of Selbourne, S.C. preferred the
phrase “the substantial requirement of justice”. In Vionet v. Barrett
9 (LJRD at p. 41), Lord Esher, M.R. defined natural justice as “the
natural sense of what is right and wrong”. While, however, deciding
10
Hookings v. Smethwick Local Board of Health Lord Esher, M.R.
9
instead of using the definition given earlier by him in Vionet case
chose to define natural justice as “fundamental justice”. In Ridge v.
11
Baldwin (QB at p. 578), Harman, L.J., in the Court of
Appeal countered natural justice with “fair play in action”, a phrase
12
favoured by Bhagwati, J. in Maneka Gandhi v. Union of India . In
13
H.K. (An Infant), Re (QB at p. 630), Lord Parker, C.J. preferred
to describe natural justice as “a duty to act fairly”. In Fairmount
14
Investments Ltd. v. Secy. of State for Environment Lord Russell
of Killowen somewhat picturesquely described natural justice as “a
fair crack of the whip” while Geoffrey Lane, L.J. in R. v. Secy. of
15
State for Home Affairs, ex p Hosenball preferred the homely
phrase “common fairness”.
21. How 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 Earl of
16
Derby‟s case 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 et 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 et 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 altera acquum
licet dixerit, haud acquum fecerit” 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”
17
[see Boswel‟s case (Co Rep at p. 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 (sic
open). All that is done is to vacate the order assailed by virtue of its
inherent defect, but the proceedings are not terminated.”
15. Taking into consideration the facts of this case and applying the
principles laid down, I find force in the submission made by counsel
for the petitioner that the order of cancellation could not have been
passed without following the principles of natural justice. In this
case the petitioner has been agitating his rights from the year 1998,
and at this crucial juncture, when all issues stood resolved, it is not
open to the DDA to reject the case of the petitioner on the ground
that his identity is in doubt without following the principles of
natural justice and issuance of show cause notice. This Court while
disposing of Writ Petition 7809/2009 and other connected matters,
on similar issue, issued necessary directions by which DDA was
entitled to verify and examine the genuineness of the case of the
petitioner. Nothing has been produced on record to satisfy this
court how the genuineness of the petitioner was ascertained. It is
for this reason that courts have laid stress that there must be
protection of the rights of the individual which cannot be
determined by any arbitrary procedure which may be adopted. The
petitioner could not have been condemned unheard. Consequently,
the petitioner must succeed since the only ground taken by the DDA
for not issuing the demand-cum-allotment letter is the identity of
the petitioner. The petitioner shall appear before the Deputy
Director (Housing), DDA, in person along with all original supporting
documents including proof of identity, upon being informed by the
DDA about the time and date at the address mentioned in the writ
petition. Once the DDA is satisfied about the genuineness of the
petitioner, the demand-cum-allotment letters shall be issued in
accordance with law.
16. Petition as well as all pending applications stand disposed of.
G.S. SISTANI, J.
April 20, 2010
„msr‟