LAW ANALYSIS: SMT. CHITRAKALA vs THE STATE OF KARNATAKA
Author: Krishnansh Somani, II year of B.B.A.,LL.B.(Hons.) from Jagran Lakecity University, Bhopal
WRIT PETITION No.14459/2019 (LB- BMP)
COURT: HIGH COURT OF KARNATAKA
1.This Court directed the Commissioner of the Bruhat Bengaluru MahanagaraPalike (hereinafter referred to as ‘the BBMP’ for short)to hear the matter and dispose the same in accordance with law, finding fault with the action that was taken earlier.
2. After the proceedings were remitted to the hands of the BBMP, the Head of the Legal Cell initiated and conducted proceedings of hearing both the petitioner and the third respondent – Health Officer of the BBMP, who was the representative of the BBMP.
3. On considering certain facts, determination was also made by the Head of the Legal Cell, which reads as follows: “The following determination order is made: “In view of the above, it is determined that, the activities in the building in question viz., Data Entry Operations, Data Research in Software and Financial Consultancy cannot be allowed to be continued, in view of Government Notification No.UDD 105 MNJ 2008, Bangalore, dated: 20- 03- 2015, issued under the Zoning Regulations in the RMP- 2015”.
4. After such determination, as a result of the enquiry that he conducted, the Commissioner on 16.03.2019 has passed the impugned order not permitting the petitioner to carry on her proceedings pursuant to the direction of this Court is admittedly initiated and heard by the Head of Legal Cell and the Commissioner who did not hear the grievance or the matter, as directed by this Court, has passed the impugned order.
• Can the Commissioner who did not hear the matter has power decided on that matter?
Argument from the side petitioner
Thelearned counsel appearing for the petitioner submitted that that the Head of the Legal Cell could not have heard the matter and the Commissioner passing an order declining to permit the activity that the petitioner was carrying in her residential premises on such hearing, is unknown to law.
Argument from the side respondent
Thelearned counsel appearing for the second and third respondents submitted thatin terms of Section 66 of the Karnataka Municipal Act, 1976, the power of the Commissioner to hear and dispose of the matters are delegated to the Head of the Legal Cell, subject to the final decision of the Commissioner and the order passed by the Commissioner cannot be found fault with, is his emphatic submission. They also place reliance upon an office order dated 04-01-2019, issued by the Commissioner, delegating all the authority that has been conferred upon him under the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as ‘the Act’ for short) and even toughing the provisions of other legislations to be heard by Head of the Legal Cell.
The court held that Manifold powers, duties and obligations are cast upon the Commissioner in terms of the Act, a few of them are quasi-judicial in nature as the Commissioner is empowered to adjudicate upon the rights of the parties. Adjudication upon the rights of the parties cannot but be a power which is quasi-judicial in nature. Therefore, quasi-judicial power will have to be exercised only by such officer who is empowered to exercise and not by any other authority. Delegation of powers in terms of office order (supra) is by taking recourse to Section 66 of the Act, which reads as follows: - “66. Delegation of Commissioner’s ordinary power.- Subject to the rules made by the State Government, the Commissioner may delegate to any officer of the Corporation subordinate to him any of his ordinary powers, duties and functions including the powers specified in Schedule III.” Section 66 of the Act, in my considered view, can only be a delegation of his ordinary powers, duties and functions and not delegating quasi judicial powers. Quasi judicial powers cannot be bartered away contrary to duties and obligations imposed upon the Commissioner in terms of the statute.
Judicial process cannot be said to be similar to administrative process in various aspects. This is because the principle and primary task of the judiciary is adjudication of the dispute. The main judicial function requires existence of the dispute between two or more parties and it involves some requisite the first being the presentation of case by the disputing parties. If the dispute is found to be a question of facts, then the facts are ascertained by means of evidence by the parties to the dispute and also with arguments by or on behalf of the parties but if it is found that dispute is regarding the question of law, then there is submission of legal argument by the parties. At the end there is a decision which disposes of the whole matter by finding upon the facts in dispute and an application of law to the facts. However, on other hand an administrative authority’ duties are not limited to adjudication, they are responsible to perform a variety of other functions.
So this lead to adoption of two different procedures of adjudication . in first procedure a judge who is adjudicating a matter himself hears the entire matter and then based on his judgement decides the entire matter, but due to variety of functions being conferred on the administrative authorities it may not be possible to individually hear the matter. So, for discharging the duties and responsibilities that are being given to the authorities by the statute , administrative authorities are bound to take assistance from their subordinates. It might very much happen that one official may hear the entire matter while other officer may take decision. However it is important to understand the simple fact that this division of the decision-making process wherein one hears and another decides may go against the basic and core concept of the judicial process that is the principle of natural justice. This is because the salutary rule of natural justice of audialterumpartem will be violated in its substance and content if the person who hears does not gives the decision. This issue regarding to the principle of ‘he who decides must hear’ can found its initial bases in the case of GullapalliNageswara Rao v. A.P. State Road Transport Corporation[i]. The court in this case discussed several other cases inclusing local government board vs Arlidge[ii], Ranger v. Great Western Rly. Co[iii]., Rex v. Sussex Justices; Ex parte McCartthy[iv] and Rex v. Essex Justices: Ex parte Perkins[v]and held: “The aforesaid decisions accept the fundamental principle of natural justice that in the case of quasi-judicial proceedings, the authority empowered to decide the dispute between opposing parties must be one without bias towards one side or other in the dispute.” In this case the principle of “the one who decides must hear” is recognized since bias and ignorance both hinders fair judgment purely on the merits of the case. Following the same very recently the Uttarakhand High court in Smt. Savita Chaudhary Vs. State of Uttarakhand& Others[vi] have held that it is settled position of the law that judicial and quasi-judicial powers cannot be delegated. In this particular case the powers of suspension was delegated by state government to the District Magistrate, however the court held that the power to suspend are of quasi-judicial in nature and thus they can not be delegated. Not only in India courts have taken this stand but also the Supreme Court of United States in Morgan v. United States[vii]have taken a similar stand. In this decision that U.S. Supreme Court invalidated an order for price-fixing by the Secretary of Agriculture solely on the ground that the Secretary himself had not personally heard or read any of the evidence or considered the arguments submitted but he had decided the matter only on the advice of his officials in consultations at which the objectors were not present. Chief Justice Hughes rejected the very essence of administrative practice by refusing to allow that ‘one official may examine evidence, and another official who has not considered the evidence may make the findings and order’. Chief Justice further said: “That duty cannot be performed by one who has not considered evidence or argument. It is not an impersonal obligation. It is akin to that of a Judge. The one who decides must hear.”
It is very important to understand the advantages that implementation of the principle of “the one who decides must hear” have. When the person who is deciding matter hears the matter it gives individual who is accused or who is presenting the matter an opportunity to directly address to the person who really counts, and it gives the adjudicating officer an opportunity to watch the behaviour and conduct of witnesses and provides an opportunity to decide himself on the evidence presented to him. However, if hearing is not done by the person authorised to take decision, then the adjudicating officer will merely act as a rubber stamp, having no real control over the matter as he may not be familiarising himself with the evidence collected by others. Consequently, the chances of error will increase and thus defeating the whole purpose of giving quasi-judicial powers to the authority as the matters will cause injustice and aggrieved party will go to courts challenging the order passed by the adjudicating authority. So in my opinion the verdict of the court is in accordance to the well settled principles of law as well is reasonable and ensures the prevalence of justice in society.