CENTRAL PUBLIC WORKS DEPARTMENT Vs. BESANT NAGAR RESIDENTS

JUDGEMENT

(1.) W.ANo.548 of 1990 by the Union of India, W.ANo.648 of 1990 by the Metropolitan Development Authority and W.ANo.554 of 1990 by the Contractors been entrusted with the execution of the work of construction of an Office Complex Public Works Department of the Central Government, are directed against the W.P.No.5678 of 1989 filed by the first respondent in all these appeals, viz., Besant Residents Forum represented by its Secretary, who incidentally also has W.A.No.1007 of 1990 against the same very order. Moving this Court for a writ of and a consequential mandamus for quashing Notification No.VI(1)/951/88 (D2(R) dated 17.10.1988 and praying to restrain the respondents from proceeding construction of any Office Complex in a piece of land measuring about 7 acres comprised S.Nos.46 (part), 47 and 49 of Uroor village, Besant Nagar, the Writ Petitioner respondent) alleged that Besant Nagar and its vicinity in the City of Madras originally planned as a primary residential locality and accordingly classified as a Zone was, in violation of the provisions of the Tamil Nadu Town and Country Planning 1971 (hereinafter referred to as the 'Act') and the Rules framed thereunder, reclassified institutional Zone.

(2.) IN a well considered judgment in the writ petition wherein all relevant facts stated it is difficult to find any error yet, since learned counsel for the appellants chosen to canvass before us for a remand for re-hearing on the ground that principles natural justice were not adhered to, in order to justify we propose to state the fundamental facts for the contentions that have been raised before us and deal with afresh even cost of repetition of the citations and the findings recorded by the learned single Judge.

(3.) THERE is the long line of decisions saying that when the law under which any authority required to take a decision, which is likely to affect some one 's right or interests whether individual or in common with other persons, he must act in accordance with the principle natural Justice. Any decision which causes a civil consequence, has to conform to the applied to quasi judicial proceedings. If the statute demands a notice of hearing, it makes clear provision for it. If, however, it does not make any such provision, but also introduces no provision to a hearing, rules of natural Justice step in. The rule of audi alteram partem is now established, must inform every quasi judicial process. And what does it say? Does only say that those who should be heard, were likely to be condemned? Courts in India Courts in England have adopted it as a principle of wider amplitude holding that it must be given a narrow meaning and that full and adequate opportunity of being heard alone justify any quasi judicial process. Besides this and yet another rule of natural justice, Nemo debut cess judex in causea propria sua, a third rule has taken roots that in deciding disputes and differences and in such other adjudications, orders made must contain sufficiently clear and explicit reasons then alone administrative authorities and tribunals exercising quasi judicial functions will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The law in this has been stated in Siemens Engg. & Mfg. Co. v. Union of India, A.I.R. 1976 S.C. 1785: S.C.R. (Supp.) 489, by the Supreme Court in these words: "If courts of law are to be replaced by administrative authorities and tribunals, as indeed, some kinds of cases, with the proliferation of Administrative law, they may have replaced, it is essential that administrative authorities and tribunals should accord fair proper hearing to the persons sought to be affected by their orders and give sufficiently and explicit reasons in support of the orders made by them. Then alone, administrative authorities and tribunals exercising quasi judicial functions will be able to justify 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 audi alteram partem, a basic principle of natural justice which must inform every judicial process and this rule must be observed in its proper spirit and mere pretence compliance with it would not satisfy the requirement of law." The Supreme Court has in one of its latest judgments in Rajpur Development Authority M/s.Chokhamal Contractors, A.I.R. 1990 S.C. 1426, observed, "It is now well settled that an award can neither be remitted nor set aside merely on Ground that it does not contain reasons in support of the conclusion or decisions reached in it where the arbitration agreement or the deed of submission requires him to give reasons. arbitrator or umpire is under no obligation to give reasons in support of the decision reached by him unless under the arbitration agreement or in the deed of submission he is required give such reasons and if the arbitrator or umpire chooses to give reasons in support decision, it is open to the Court to set aside the award if it finds that an error of law has committed by the arbitrator or umpire on the face of the record on going through reasons. The arbitrator or umpire shall have to give reasons also where the Court directed in any order such as the one made under Sec.20 or Sec.21 or Sec.34 of the Act reasons should be given or where the statute which governs an arbitration requires him so. 'We have already observed that the two recognised principles of natural Justice were (i) a Judge or an Umpire who is entrusted with the duty to decide a dispute, should disinterested and unbiased, Name debut cess judex in causa propria sua and (ii) that parties to dispute should be given adequate notice and opportunity by the Authority, alteram partem. For the first time, this Court laid down that the rule requiring reasons support of an order is a third principle of natural justice. It may be observed in Bhagat v. Union of India, A.I.R. 1967 S.C. 1606, that the Court may require a Tribunal to reasons in support of its order in order to make the exercise of power of the High under Arts.226 and 227 of the Constitution and the power of this Court under Art. 136 Constitution of India effective.'In yet another case in Neelima Misra v. Horinder Paintal, A.I.R. 1990 S.C. 1402, the Supreme Court has observed, 'An administration function is called quasi judicial when there is an obligation to adopt judicial approach and to comply with the basic requirements of justices. Where there such obligation, the decision is called 'purely administrative'and there is no third category. 'The shift now is to a broader notion of fairness or fair procedure in the administrative As far as the administrative officers are concerned, the duty is not so much to act judicially as to act fairly. For this concept of fairness, adjudicative settings are not necessary, nor necessary to have lites inter parties. THERE need not be any struggle between two opposing parties giving rise to a lie. THERE need not be resolution of to inter parties. The duty judicially or to act fairly may arise in widely different circumstances. It may arise expressly impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness of administration. But then even such an administrative decision unless it affects one rights or one 's property rights, or the loss of or prejudicially affects something which juridically be called at least a privilege does not involve the duty to act fairly consistent the rule of natural justice. 'We cannot discover any principle contrary to this concept. We quote a specific finding in order of the learned single Judge, we think, it is not necessary to refer to any foundational facts, as he has found, 'Water is the most important of the elements of the nature '. In State of Himachal Pradesh Umed Ram Sharma, A.I.R. 1986 S.C. 847, the Supreme Court has held that every person entitled to life as enjoined in Art.21 of the Constitution, that he has also the right Art.21 to hie life and that right under Art.21 embraces not only physical existence of life also the quality of life. Considering the allegations made by the petitioner Association and complaints made with regard to the intrusion of the sea water into ground water, I am of view that the petitioner should have the right of using the ground water without infiltration and without any pollution due to the construction of a huge office complex. view of the constitutional imperatives, I am of the view that the denial of right would denial of life as understood in its richness and fullness by the ambit of the Constitution. Olga Tellis v. Bombay Municipal Corporation A.I.R. 1986 S.C. 180, it has been held that object alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. 'All the materials placed before me by the petitioner association for consideration and the report of the Consultant dated 27/02/1990 produced by the petitioner association will clearly shows that the water sample made in three different locations show that if in the western part, the extraction of ground water increased, it will result in an irreversible phenomenon of sea water intrusion towards and the whole area will be spoilt by salinity. The report of the Chief Water Analyst dated 23.6.1989 addressed to the Assistant Engineer, Central Public Works Department, Madras only shows that the water is usable for building construction purposes. As stated paragraph 13 of the affidavit, I.S.I. specification for drinking water, in dissolved solids maximum is 500 ppm, and in the objections raised by the petitioner association, it has been clearly stated that due to overdrawal of water, sea water intrusion is taking place and detailed study on the ground water resources of Besant Nagar and its vicinity was conducted and it will be seen from the result of the study that the water is unfit for human consumption per I.S.I, standards. I am of the view that this aspect of the matter has not been considered." The above discussion alone is enough in our opinion to justify the directions issued by learned single Judge for a re-hearing of the whole matter and a decision taken strictly accordance with the principles of natural justice. The M.M.D.A. in its notification No.D2/B/6/88 had stated: "Any person who intends to make any objection or suggestion/representation as regards above variation proposal may do so in writing to the Member-Secretary, Madras Metropolitan Development Authority within 21 days from the date of this Notification........." The respondent petitioner had sent a representation and asked for a personal hearing. member-Secretary, it seems, called the representatives for a discussion on 8/9/1988 p.m. It also appears that the files had been placed before the technical expert committee 22/08/1988 which committee recommended the re-classification. Learned single Judge noticed: "I am not able to see anything in the file to the effect that the objection, especially regard to the ground water problem and the ecological imbalance which were raised petitioner association was considered before ordering the reclassification of the question." He has also said "Except the meeting held with the members of the forum, I do not see anything in that their objections have been considered fully by the first respondent herein. As such, far as I am not able to find out that their objections were duly considered, I am of the that the impugned notification has to be set aside on that ground.".