41.Mr. Ashok K. Gupta, learned senior counsel appearing for the legal heirs of respondent No. 10, had made detailed submissions controverting the submissions made on behalf of the appellant.
25 (2008) 13 SCC 170 26 (2009) 12 SCC 378.
42.It is submitted that the submissions made by the appellant that the Central Government’s order is not in consonance with Article 77, is wholly unfounded and devoid of merits. This ground was not even pleaded in the writ petition before the High Court. In fact, no such submission was made at the hearing of the writ petition by the High Court. No grievance is made in the SLP that such a submission was made before the High Court and that it was not considered. The submissions raised by the appellant at this stage being a mixed question of law in fact ought not to be permitted to be raised in the present proceedings. This apart, he submits that the judgment in the case of Bachhittar Singh (supra) was rendered on the basis of its own facts. Furthermore, in that case, the JUDGMENT order signed by the Minister was not communicated to the parties and therefore, it was held that there was no effective order. In the present case, the order was passed on the basis of the approval granted and conveyed in the manner prescribed under law. With regard to the order being vitiated as it was passed on consideration of the material subsequent to the date of recommendation of the State Government viz. 5th February, 1999, he submits that the appellant cannot even be permitted to raise such an objection, having willingly submitted materials/information subsequent to the date of the recommendation by the State Government. Mr. Gupta further submits that Section 5(2) of the MMDR Act does not prohibit the Central Government to take into account material subsequent to the recommendations made by the State Government. In the present case, it was necessary as the hearing was being conducted 2½ years after the recommendations have been submitted. Learned counsel further submits that no fraud was played by the legal heirs of respondent No.10, as is sought to be JUDGMENT canvassed by the appellant. No such ground of fraud was either pleaded in the writ petition before the High Court nor was any submission made to that effect before the High Court. The letter dated 5 th November, 2001 of Mr. Nilamani Ojha has been obtained by the appellant only for the purpose of prejudicing the case of the appellant in this Court. With regard to the main ground relating to breach of rules of natural justice and which is premised on the basis that no hearing was granted by the officer that passed the impugned order, it is submitted that the submission is contrary to the material on the record. The matter was heard by Mr. S. P. Gupta, and it was his note running into 47 paragraphs, which was approved by the Secretary and the Minister, as per the rules of the business. The hearing was to be given by the Central Government and not by a particular individual. Therefore, it was clearly a case of institutional hearing and it was not necessary that Mr. Gupta should have passed the order. In this context, he relies on a judgment of the House of Lords JUDGMENT in Local Government Board Vs. Arlidge 27 . According to the learned counsel, this principle is also recognized by this Court in Automotive Tyre Manufacturers Association (supra) and Ossein and Gelatine Manufacturers’ Association of India 27 (1915) AC 120 Vs. Modi Alkalies and Chemicals Limited & Anr. 28 and Pradyat Kumar Bose Vs. The Hon’ble The Chief Justice of Calcutta High Court29.
43.We have considered the submissions made by the learned counsel for the parties.
44.It is by now well settled that judicial review of the administrative action/quasi judicial orders passed by the Government is limited only to correcting the errors of law or fundamental procedural requirements which may lead to manifest injustice. When the conclusions of the authority are based on evidence, the same cannot be re-appreciated by the court in exercise of its powers of judicial review. The court does not exercise the powers of an appellate court in exercise of its JUDGMENT powers of judicial review. It is only in cases where either findings recorded by the administrative/quasi judicial authority are based on no evidence or are so perverse that no reasonable person would have reached such a conclusion on the basis of the material 28 1989 (4) SCC 264 29 1955 (2) SCR 1331 available that the court would be justified to interfere in the decision. The scope of judicial review is limited to the decision making process and not to the decision itself, even if the same appears to be erroneous. This Court in the case of Tata Cellular Vs. Union of India 30 upon detailed consideration of the parameters within which judicial review could be exercised, has culled out the following principles :
“70. It cannot be denied that the principles of
judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.
30 (1994) 6 SCC 651
77.The duty of the court is to confine itself to the question of legality. Its concern should be:
1.Whether a decision-making authority exceeded its powers ?
2.Committed an error of law,
3.committed a breach of the rules of natural justice,
4.reached a decision which no reasonable tribunal would have reached or,
5.abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under : (i) Illegality : This means the decision-maker JUDGMENTmustregulatesunderstandhis decision-makingcorrectly thepowerlaw thatand must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time……
45.The aforesaid judgment has been followed again and again. It was clearly observed in the said judgment that where the Court comes to the conclusion that the administrative decision is arbitrary, it must interfere. However, the Court can not function as an appellate authority substituting the judgment for that of the administrator. Applying the aforesaid principles, the High Court has examined the entire record and has concluded that the decision making process is not flawed in any manner, as canvassed by the appellant. The High Court noticed that the record was duly produced by Mr. J.K. Mishra, learned Assistant Solicitor General. It was also noticed that throughout the proceedings, no reference has been made to any particular officer or post or any designation. The order dated 11th July, 2001 passed by the High Court merely directed that they shall appear before the Central Government on 18th July, 2001. Order dated 14th August, 2001 clearly indicates that the matter was being heard in view of the directions given by the High Court in OJC No. 11537 of 1999 and secondly, notice was issued for hearing on 28th August, 2001. The record further indicated that the matter was heard by Mr. S. P. Gupta, Joint Secretary for two days i.e. on 28th August, 2001 and 13th September, 2001. Both the parties had been given opportunity to place on the record any documents and written submissions in support of their claim. It was also apparent that particulars submitted were made available to all the parties. On 13th September, 2001, Mr. S. P. Gupta, Joint Secretary made a note as under : “Thus, all the documents available with the Central Government are also available with both the parties.” JUDGMENT
46.The High Court also took note of the fact that independently of all the material supplied by the State Government along with the recommendation and the material made available by the parties, the Central Government had also asked Indian Bureau of Mines to furnish certain reports in support of both the parties. These reports were, in turn, made available to the rival parties. The High Court further noticed that after complying with all the formalities required, the issues were finally adjudicated. Upon conclusions of the arguments by the parties, Mr. S. P. Gupta, Joint Secretary who had heard the parties prepared the note running into 19 pages (from pages 30 –
49.containing 47 paragraphs of original record. The note has been duly signed by Mr. S.P. Gupta, Joint Secretary on 17th September, 2001. The High Court further noticed that in fact this is the report which had been duly approved by the Secretary on 18th September, 2001 and by the Central Government Minister on 25th September, 2001. While making the endorsement of the approval, the JUDGMENT Secretary has written as under :- “I endorse fully the above note of the Joint Secretary. This is a very old case in which the parties have repeatedly recourse to the courts. As such (sic) even now near litigation may follow. Therefore the decision of the Central Government has to be in terms of a speaking order which is backed by facts and law.”
47.The High Court further notices that the impugned order dated 27th September, 2001 is, in fact, a verbatim copy of the report/note prepared by Mr. S.P. Gupta, Joint Secretary. Upon examination of the entire matter, the High Court has concluded that the order has been signed by Mr. R.P. Khatri merely to communicate the approval of the Central Government to the parties.
48.We are of the considered opinion that the conclusions reached by the High Court cannot be said to be contrary to the established principles and parameters for exercise of the power of judicial review by the courts. At this stage, we may also make a reference to a submission made by Mr. Krishnan that the High JUDGMENT Court did not give due consideration to the grievance of the appellant raised in the writ petition with respect to the merits because it assumed that the appellant had attempted to bye-pass the alternative remedy of revision available to it under Section 30 of MMDR Act read with Rules 54 and 55 of the Rules. We are of the considered opinion that the aforesaid submission of the learned counsel is wholly misplaced. The High Court merely noticed that the matter had been referred back to the Central Government on a limited issue. Therefore, it was not open to the Central Government to re-open the entire controversy. It has been observed by the High Court that such a power would only be available to the Central Government in exercise of its Revisional Powers under Section 30 read with Rules 54 and 55 of the Rules. We also do not find much substance in the submission made by Mr. Krishnan that the order dated 27th September, 2001 is vitiated as it has been passed by an officer who did not give a hearing to the parties. This is clearly a case of an institutional hearing. The JUDGMENT direction has been issued by the High Court for a hearing to be given by the Central Government. There was no direction that any particular officer or an authority was to give a hearing. In such circumstances, the orders are generally passed in the relevant files and may often be communicated by an officer other than the officer who gave the hearing. The legality of institutional hearing has been accepted in England since the case of Local Government Board Vs. Arlidge (supra). The aforesaid judgment was quoted with approval by this Court in Pradyat Kumar Bose (supra). This Court approved the following passage from the speech of Lord Chancellor in the aforesaid case: “My Lords, I concur in this view of the position of an administrative body to which the decision of a question in dispute between parties has been entrusted. The result of its enquiry must, as I have said, be taken, in the absence of directions in the statute to the contrary, to be intended to be reached by its ordinary procedure. In the case of the Local Government Board it is not doubtful what this procedure is. The Minister at the head of the Board is directly responsible to Parliament like other Ministers. He is responsible not only forwhat he himself does but for all that is done in his department. The volume of work entrusted to him is very great and he cannot do the great bulk of it himself. He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly. To try to extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to impair his efficiency. Unlike a Judge in a Court he is not only at liberty but is compelled to rely on the assistance of his staff.” In view of the aforesaid settled position of law, it is difficult to accept the submissions of Mr. Krishnan that the order dated 27th September, 2001 suffers from any legal or procedural infirmity. In our opinion, the conclusions reached by the High Court are in accordance with the settled principles of law. Although a large number of cases have been cited by the learned counsel for the parties on either side, but it is not necessary to consider all of them individually as the principles with regard to observance of natural justice are well entrenched in our jurisprudence. Undoubtedly, any decision, even if it is administrative in nature, which causes adverse civil consequences must be passed upon hearing the concerned parties. In our opinion, the Central Government has fully complied with the JUDGMENT aforesaid principle in passing the order dated 27th September, 2001.
49.In view of the above, we find no merit either in Civil Appeal No. 1013 of 2013 arising out of SLP (C)No. 23141 of 2007 or Civil Appeal No. 1014 of 2013 arising out of SLP (C) No. 5130 of 2009. Both the appeals are, therefore, dismissed with no order as to costs.
[Surinder Singh Nijjar] [H.L.Gokhale] New Delhi; February 07, 2013.