Braham Dass (Brahamu Ram) vs Financial Commissioner (Appeals) And Another

Ajay Mohan Goel, J

Notice. Mr. Dinesh Thakur, learned Additional Advocate General, accepts notice on behalf of the respondents. As the issue involved in this petition

is very limited, therefore, with the consent of learned counsel for the parties, this petition is being disposed of at the admission stage itself.

By way of this petition, the petitioner has assailed order dated 30.07.2020, passed by the Court of learned Financial Commissioner (Appeals) in

M.A. No. 101/2020 filed alongwith Revision Petition No. 83/2020, which petition has been preferred by the petitioner before the said Court against

order dated 17.01.2020, passed by the Court of learned Divisional Commissioner, Mandi in Case No. 288/2017, titled as Sh. Braham Dass (Brahmu

Ram) Vs. State of Himachal Pradesh.

I have heard learned counsel for the parties and have gone through the impugned order.

Order dated 30.07.2020, vide which, the application filed by the petitioner before the learned Financial Commissioner (Appeals) for grant of interim

directions/stay with regard to the order which stood assailed before the said authority has dismissed reads as under:

“...On considering the arguments put forth by the Ld. Counsel for the petitioner, it is appropriate to call for the record of the Courts below at first

instance.

As far as stay is concerned, the Ld. Counsel could not reasonably justify as to what prejudice would be caused to the pettioner in case the impugned

orders are not stayed. Therefore, stay is rejected. Accordingly, the MA No. 101/2020 is dismissed.

To come up for admission on 1.9.2020. Since, the matter was reserved for order on 29.7.2020, this order be conveyed to Ld.

Counsel for the petitioner.â€​

A bare perusal of this order demonstrates that it is both nonÂspeaking as well as unÂreasoned. In umpteen number of cases, Hon’ble Supreme

Court has reiterated that the quasi judicial authorities, while disposing of matters which touch the rights of the parties, have to pass a speaking and

reasoned order. Hon’ble Supreme Court has now in fact gone to the extent to hold that authorities while exercising administrative powers also

have to pass a reasoned and speaking order in case the order passed touches the rights of the parties.

Hon’ble Supreme Court in Ravi Yashwant Bhoir Vs. District Collector, Raigad and others (2012) 4 Supreme Court Cases 407 has held as

under:

“38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to

pass a speaking and reasoned order.

In Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. & Ors., AIR 1991 SC 537, this Court has observed as under:Â​

Every such action may be informed by reason and if follows that an act unÂinformed by reason is arbitrary, the rule of law contemplates governance

by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that ""be you ever so

high, the laws are above you."" This is what a man in power must remember always.

In L.I.C. of India & Anr. v. Consumer Education and Research Centre & Ors., AIR 1995 SC 181,1 this Court observed that the State or its

instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. ""Duty to act fairly"" is part of fair

procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the

public interest. A similar view has been reiterated by this Court in Union of India v. M.L. Capoor & Ors., AIR 1974 SC 8;7 and Mahesh Chandra v.

Regional Manager, U.P. Financial Corporation & Ors., AIR 1993 SC 935.

In State of West Bengal v. Atul Krishna Shaw & Anr., AIR 1990 SC 2205, this Court observed that:

giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial

review.

Coming to the facts of this case, impugned order dated 30.07.2020 neither mentions as to what were the grounds raised in the application nor it

refers to the arguments which learned counsel for the applicant raised before the said authority. In addition, there is no reasoning assigned in the order

as to why the the arguments addressed by learned counsel for the applicant, on the facts involved in the case, did not warrant any grant of stay. This,

thus, demonstrates that the impugned order is unÂreasoned and nonÂspeaking and not sustainable in law. Accordingly, on this short count, this petition

is allowed and order dated 30.07.2020, passed by the Court of learned Financial Commissioner (Appeals) in M.A. No. 101/2020 filed alongwith

Revision Petition No. 83/2020, is set aside. It is further ordered that the application, i.e., MA No. 101/2020, which stood filed by the petitioner for grant

of stay before the learned Financial Commissioner (Appeals), which stood decided on 30.07.2020, stands revived and now the same shall be heard and

decided afresh by the authority concerned by passing a speaking and reasoned order. It is made clear that this Court has not made any observation on

the merits of the case and all that it desires is that the application should be decided by the authority concerned by passing a speaking and reasoned

order. Till such order is passed, the implementation of order of Divisional Commissioner, Mandi, which stands assailed before the Financial

Commissioner (Appeal) shall remain stayed.

Petition stands disposed of in above terms, so also pending miscellaneous applications, if any.

Copy dasti.