Shri Kanak Chandra Saikia vs The State of Assam and Others

K. Lahiri, J.—The case involves a short point and we propose to dispose of the point upon hearing Mr. P.K. Goswami, learned Counsel for the Petitioner and Mr. D.N. Choudhury, learned Senior Government Advocate, Assam, as desired by them.

The point urged by the Petitioner is that the appeal preferred by Respondent No. 4 u/s 138 of the Assam Panchayat Raj Act, 1972 was heard and decided against him in breach of the principle of "audi alteram partem" rule and there was no "fair hearing" of the appeal; and by the impugned order the acquired right of the Petitioner was taken away by the appellate authority without giving him any opportunity to participate in the appeal proceedings. On June 23, 1984 the Petitioner was settled with the ''Hat'' by the Mahkuma Parishad. Against the order of settlement Respondent No. 4 preferred an appeal u/s 138 of "the Act"'' and the appellate authority fixed the date of hearing of the appeal ex-parte. However, the present Petitioner received a notice on 31.7.84 informing him that the appeal would be heard on 3.8.84. The Petitioner was not furnished with any copy of the memo of appeal to enable him to contest the appeal or to file necessary affidavit on material before the appellate authority. Accordingly the Petitioner sent the following telegram.

Reference your PDA/847A of Nineteenth instant (.)

Appeal petition copy not received (.) Pray Adjournment (.).

Kanak Saikia.

The telegram was addressed to the Appellate authority. The copy of telegram shows in clear term that the Petitioner was not served with the copy of Memo, of Appeal and, accordingly he prayed for adjournment. Further, the appeal was posted for hearing on 2.8.84 and the Petitioner, who was Respondent before the Appellate authority, received the notice of hearing only on 31.7.84. It is stated by the Petitioner that notwithstanding receipt of the telegram, the Appellate authority heard and disposed of the appeal again it the Petitioner and settled the ''Hat'' in favour of Respondent No. 4, Learned Counsel for the Petitioner submits that naturally the case of the Petitioner was not appropriately considered. If the present Petitioner would have been provided the opportunity of hearing the appeal would have been dismissed.

Before us the crucial question is whether to issue a Rule, keep the writ petition pending, staying the operation of the impugned order or should we dispose of application forthwith? It would cause prejudice to the parties including Respondent No. 4, provided he has a better claim than the Petitioner. The Petitioner claims that he was denied any opportunity of hearing and the basic principles of natural justice were violated. Under three circumstances, for the benefit of the parties, we propose to dispose or the petition today hearing learned Senior Government Advocate, Assam, appearing on behalf of Respondents 1 and 2 granting liberty to other Respondents to come up before us for modification, alteration or cancellation of this order if so advised.

Indeed the Petitioner had acquired "a right" by virture of the order of settlement made in his favour and that right was taken away by the Appellate authority. It is needless to say as to whether the Petitioner has a statutory right to appear before the Appellate authority or not. However, in our opinion, in the instant case the decision was rendered upon hearing only the learned Counsel far the Respondent No. 4 (who was Appellant there), However the petitions (who was Respondent there), was not heard, The appellate authority fixed the date of hearing ex-parte, that is, in the absence of the Petitioner. The Petitioner did not even get a copy of the Memo of Appeal which in all fairness and according to the principles of justice the Respondent was entitled to get.

Under these circumstances when neither the Appellant nor the Appellate authority furnished a copy of the Memo of Appeal to the Petitioner, the appeal should not have been taken up for hearing on 2.8.84, more so, when the Petitioner frantically asked for a copy and prayed for adjournment or postponement of the date of bearing. The Petitioner has asserted that Respondent No. 1 received the telegram. On receipt of the Telegram it was the bounden duty of a quasi judicial authority performing quasi judicial function to dispose of the prayer made in the telegram, one way or the other, and only then it could have disposed the appeal. However it appears that the telegram was not at all taken into consideration and the matter was heard exparte against the Petitioner. Under these circumstances, it appears to us that ''''the principles of natural justice" were violated. There is no debate at the bar that the principles of natural justice do apply even to the Administrative Bodies. In A.K. Kraipak and Others Vs. Union of India (UOI) and Others, it was ruled that:

In the past it was thought that it included just two rules namely; (1) that nobody should be a Judge in his own case (Nemo debet esse judex propria casua); and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).

Apart from the said two rules, third rule was envisaged and that is that quasi-judicial enquiries must be held, without bias and not arbitrarily and unreasonably.

In our opinion, in the instant case not only the principle of "audi alteram partem rule" was breached but the decision was rendered arbitrarily and unreasonably, that is, without ascertaining whether the Respondents had fair opportunity to contest the appeal. Under the circumstances, it was not appropriate to hear the appeal when the Petitioner had asked for the postponement of the hearing on the (sic) that he had not been furnished with a copy of the Memo of Appeal, which we consider to be a just and reasonable ground for granting adjournment. The period afforded to the Petitioner was hardly two days to contest the appeal. The period was too short and that too when the Petitioner had not been furnished with any copy of the Memo. of Appeal.

Under these circumstances we reach the conclusion that the interest of justice demands that the appeal should be re-heard and disposed of in accordance with law following the principles of natural justice. The matter is sent back to the Appellate authority for disposal of the appeal in accordance with law. The appellate authority shall issue notice, on the parties fixing a date of hearing of the appeal and serve notice or the date of hearing sufficiently ahead of the settled date of hearing furnishing full opportunity of hearing and thereafter decide the appeal in accordance with law. Until the appeal is so heard and disposed of no effect will be given to the impugned order dated 8.8.84. If the appeal preferred by Respondent No. 4 is dismissed by the Appellate authority after rehearing in that event no effect to the impugned order dated 8.8.84 shall be given. However, if the appeal is allowed after such re-hearing in that event the order so rendered shall alone be effective and binding on all the parties. In short, the order passed after re-hearing shall supersede the present impugned order.

Any party aggrieved by this order, including Respondents 3 and 4, is granted liberty to file application asking for amendment, modification, alteration and/or cancellation of this order if so advised.

The Petitioner to send a copy of this order to Respondent Nos. 3 and 4 within a week from today.

In the result the petition is accepted to the extent indicated above.