A.V. Savant, J.
1. Heard both the learned Counsel.
2. Appeal admitted. Mr. Singhvi for the respondents-Corporation waives service. By consent appeal taken up for hearing forthwith. Heard both sides.
3. This appeal seeks to challenge the order dated 29th June 1992 passed by the City Civil Court, Bombay by which the prayer for ad-interim relief pending the motion has been rejected. The Counsel for the parties have argued the matter in details raising an important question of law and have invited a decision on it. Since the point arises in several cases, the question of law which has been argued is as to whether the right to have an oral hearing or personal hearing is a necessary concomitant of the principles of natural justice. In other words, in the facts of the present case, the precise question of law which arises is whether in the proceedings under Clause (a) of sub-section (1) of section 351 of the B.M.C. Act, 1888 (for short 'the Corporation Act'), the Municipal Commissioner or the Deputy Municipal Commissioner is bound to give oral hearing or personal hearing to the affected party. A few facts may be stated as under.
4. The appellant claims to be the owner of a chawl of brick masonry walls and A.C. sheets roof measuring about 104' x 21'/37' consisting of 10 rooms known as 'Razak Chawl' situated at land bearing Survey No. 208 (part) CTS 2050 (part) at Kajupada Road, Kaujupada, Borivli (East), Dahisar village, Bombay which is referred to as the 'suit premises'. The respondent-Corporation issued a notice under Clause (a) of sub-section (1) of section 351 of the Corporation Act on 13th March 1992 pointing out to the appellant that he had erected the suit premises contrary to the provisions of section 347 of the Corporation Act. The appellant was, therefore, required to submit a statement in writing showing sufficient cause why the suit premises should not be pulled down. The notice further stated that if the appellant was in possession of any proof to show that the construction of the suit premises was not unauthorised, he was requested to produce the same. It further informed the appellant that if he failed to show sufficient cause to the satisfaction of the Deputy Municipal Commissioner, the suit premises would be removed or pulled down.
5. On 17th March 1992, the appellant submitted his reply and contended that the suit premises were in existence prior to 1960 but since the same were situated in an undeveloped area, they were not assessed and came to be assessed subsequently under Assessment No. R/7060(5F). According to the appellant the suit premises were also censured but since they were situated on a private land, no photo pass or identity card was issued to the appellant. The appellant contended that he had carried out minor repairs in October 1982 and again in December, 1991, including changing of decayed A.C. Sheets over the roof of the suit premises. The appellant did say that he was in possession of several documents in support of his contentions and in the concluding portion of the reply, he prayed for personal hearing being given to him to enable him to produce the original documents for the scrutiny of the Deputy Municipal Commissioner.
6. On 28th May 1992, the Deputy Municipal Commissioner passed the order to the effect that he had carefully considered the appellant's reply dated 17th March 1992 and the reply was not satisfactory on account of four grounds which are mentioned at Sr. Nos. 1, 2, 3 and 4 in the cyclostyled order. They are as under:
1. That you have failed to produce the assessment bill showing therein the existence of the structure prior to 17-4-1964 and assessment bill produced under No. R-7060(5F) does not pertain to the structure under reference.
2. That you have failed to produce the C.T.S. plan showing therein the existence of the structure prior to 17-4-1964.
3. That you have failed to produce the census certificate showing therein that the structure is censured in the year 1976.
4. That you have failed to produce other documentary evidence such as Election Roll and ration card etc. showing therein that the structure is existing prior to 1980.
It must be stated that the remaining grounds No. 5, 6, 7 and 8 in the cyclostyled order have been crossed indicating that the same were not applicable in the case of the appellant. This order dated 28th May 1992 has been challenged in the City Civil Court by filing L.C. Suit No. 4017 of 1992 on 23rd June 1992 and the motion was taken out for grant of ad-interim relief. The same having been refused under the impugned order dated 29th June 1992, the appellant has approached this Court in appeal.
7. Mr. Thorat, the learned Counsel for the appellant, has contended that in the very scheme of the provisions of section 351 of the Corporation Act, it is obligatory on the Deputy Municipal Commissioner to give a personal hearing or oral hearing even if the notice issued was under Clause (a) of sub-section (1) of section 351 of the Corporation Act. He contended that Clause (b) of sub-section (1) of section 351 itself contemplates a notice of personal hearing. His contention is that having regard to the principles of natural justice and particularly the growth of the administrative law in this field, it is necessary that before the Deputy Municipal Commissioner passes an order, as contemplated by sub-section (2) of section 351 of the Corporation Act not only a notice to show sufficient cause must be given to the appellant but also an opportunity of personal hearing and oral hearing must be given to the appellant. On the other hand, Mr. Singhvi, the learned Counsel appearing on behalf of the respondent-Corporation contended that while there can be no dispute that the Corporation must comply with the principles of natural justice, which compliance is provided for in the very scheme of the provisions of section 351, it cannot be said that in each and every case, the citizen has a right of personal or oral hearing. Mr. Singhvi, contends that it is well settled that the personal hearing or oral hearing is not a necessary concomitant of the principles of natural justice and that the principles of natural justice can be complied with even by giving an opportunity to show sufficient cause and consideration of the material produced by the citizen while passing the order in question. Both the Counsel have invited my attention to a number of judgments in support of their respective submissions. Before dealing with the said authorities, however, it is necessary to reproduce section 351 of the Corporation Act which reads as under:
'351.(1): If the erection of any building or the execution of any such work as is described in section 342, is commenced contrary to the provisions of section 347, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under section 354, shall .---
(a) by written notice, require the person who is erecting such building or executing such work, or has erected such building or executed such work, (or who is the owner for the time being of such building or work), on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down; or
(b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally, or by an agent duly authorised by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down.
(2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner (xxx) may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person.'
8. It may be stated that Chapter XII of the Corporation Act deals with the building regulations and giving of a notice regarding erection of a building. Section 337 deals with the notice to be given to the Commissioner of an intention to erect building; under section 338 the Commissioner may require the plan and other documents to be furnished; under section 339 the Commissioner may require the plan etc. submitted under section 338 to be prepared by a licensed surveyor; under section 340 the Commissioner may require additional information and attendance of the person who gives notice under section 337; section 341 provides for the effect of noncompliance with the requisitions under section 338 or 340. Section 342 onwards deal with notices regarding execution of the work, not amounting to erection of the building. These sections deal with the making of any addition to the building or alteration or repairs to the building etc. Section 342 deals with the notice to be given to the Commissioner of the intention to make additions etc., to the building. Section 343 deals with the Commissioner's powers to call for the plans and additional information etc. Section 344 provides for printed forms of notice to be supplied to the public; section 344-A deals with supervision of the building and works; section 345 provides as to when the building or work may be proceeded with; section 346 deals with the building or work which is disapproved by the Commissioner to be proceeded with subject to terms. Section 347 deals with the question as to when the work may be commenced. Section 348 deals with the provisions as to buildings which are to be newly erected. Section 349 deals with roofs and external walls of buildings not to be of inflammable materials, etc. Section 350 deals with inspection of buildings in course of erection, alteration etc. Section 351 deals with the proceedings to be taken in respect of building or work commenced contrary to section 347 which may be cut into and laid open for purposes of inspection. Section 353 deals with the Commissioner's power for enforcement of provisions concerning building and works; and section 354 deals with the removal of structures etc., which are in ruins or likely to fall. There is thus no doubt that the entire scheme of the provisions mentioned above is in the public interest, viz., not only safety of the public but also the hygiene, sanitation and other relevant aspects.
9. Both Mr. Thorat and Mr. Singhvi have invited my attention to a series of judgments of the Supreme Court dealing with the principles of natural justice in general and in particular the scope of hearing a party or the rule of audi alteram partem as also the question as to whether the rule of audi alteram partem necessarily means that oral or personal hearing should be given to the party. I may briefly refer to the ratio of these Supreme Court decisions. In the case of A.K. Gopalan v. The State of Madras-Union of India intervener, reported in 1950 Supreme Court Reports 88 it has been observed as under:
'Again I am not prepared to accept the contention that a right to be heard orally is an essential right of procedure even according to the rules of natural justice. The right to make a defence may be admitted, but there is nothing to support the contention that an oral interview is compulsory.'
Gopalan's case was a petition to the Supreme Court under Article 32 of the Constitution of India for a writ of habeas corpus against his detention in the Madras jail.
10. In the case of F.N. Roy v. Collector of Customs, Calcutta and others, reported in : 1983ECR1667D(SC) , the Supreme Court was dealing with the question of compliance with the principles of natural justice in deciding an appeal from the order of the customs authorities which appeal was dismissed without hearing the appellant. Sarkar, J., who spoke for the Constitution Bench observed in para 11 at page 652 of the report as under;
'It was then stated that the petitioner had not been given personal hearing of the appeal that he preferred to the Central Board of Revenue and the application in revision to the Government. But there is no rule of natural justice that at every stage a person is entitled to a personal hearing.'
11. In the case of Madhya Pradesh Industries Ltd. v. Union of India and others, reported in : [1966]1SCR466 , the question was whether under Rule 55 of the Mineral Concession Rules 1960, framed under the Mines and Mineral Regulations (II) Act, 1957 while deciding the revision application, the revision/petitioner was entitled to, as of right, a personal hearing. Negativing the contention Subba Rao, J., observed as under in para 10 at page 675 of the report.
'As regards the second contention, I do not think that the appellant is entitled, as of right, to a personal hearing. It is no doubt a principle of natural justice that a quasi judicial tribunal cannot make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him. Indeed, Rules 55 of the rules, quoted supra, recognizes the said principle and states that no order shall be passed against any applicant unless he has been given an opportunity to make his representations against the comments, if any, received from the State Government or other authority. The said opportunity need not necessarily be by personal hearing. It can be by written representation. Whether the said opportunity should be by written representation or by personal hearing, depends upon the facts of each case and ordinarily it is in the discretion of the tribunal.'
12. My attention has then been invited to the case of State of Assam and another v. The Gauhati Municipal Board, Gauhati, reported in : [1967]2SCR732 where the State had, after considering the explanation of the Board to the show-cause notice, ordered supersession of the Gauhati Municipal Board. It was held that the order of supersession was not in violation of the principles of natural justice. In para 7 at page 1399 of the report it has been observed as under:
'Ordinarily, therefore, there is no reason why it should be held, when the procedure provided in section 298 was complied with, that the principles of natural justice were violated. But the High Court was of the view that the appellant should have given an oral hearing to the Board which should also have been given an opportunity to produce materials before the appellant in support of the explanation. According to the High Court, the right of hearing includes the right to produce evidence in support of an explanation and this opportunity was not given to the Board. Here again it is unnecessary to decide whether section 298 which merely says that the State Government should given opportunity to the Board for submitting an explanation in regard to the matter envisages production of evidence-oral or documentary-at some later stage by the Board in support of its explanation. The High Court has conceded that a personal hearing of the nature indicated above is not always a concomitant of the principles of natural justice. But it was of the view that in the present case principles of natural justice required that the Board should have been given a personal hearing and an opportunity to produce materials in support of the explanation. We should have though that when the Board is given a notice as required by section 298 it would naturally submit its explanation supported by facts and figures and all relevant material in support thereof. However, we are definitely of opinion that the provisions of section 298 being fully complied with it cannot be said that there was violation of principles of natural justice in this case when the Board never demanded what is called a personal hearing and never intimated to the Government that it would like to produce materials in support of its explanation at some later stage. Therefore, where a provision like section 298 is fully complied with as in this case and the Board does not ask for an opportunity for personal hearing or for production of materials in support of its explanation, principles of natural justice do not require that the State Government should ask the Board to appear for a personal hearing and to produce materials in support of the explanation.'
13. In the case of Union of India v. Jyoti Prakash Mitter, reported in : (1971)ILLJ256SC the question was with regard to the powers of the President to determine the age of a High Court Judge in accordance with the provisions of Article 217 of the Constitution. The respondent before the Supreme Court had repeatedly asked for an oral hearing being given by the President and no such hearing was given to him. Dealing with the contention of the respondent the Supreme Court observed thus in para 25 at page 1103 of the report:
'Article 217(3) does not guarantee a right of personal hearing. In a proceeding of a judicial nature, the basic rules of natural justice must be followed. The respondent was on that account entitled to make a representation. But it is not necessarily an incident of the rules of natural justice that personal hearing must be given to a party likely to be affected by the order. Except in proceeding in courts a mere denial of opportunity of making an oral representation will not without more vitiate the proceedings. A party likely to be effected by a decision is entitled to know the evidence against him, and to have an opportunity of making a representation. He, however, cannot claim that an order made without affording him an opportunity of a personal hearing is invalid.'
Mr. Thorat, however, contended that the ratio of the Supreme Court decision in Jyoti Prakash Mitter's case must be read in the light of the fact that the Court was considering the scope of the powers of the President who acts in accordance with sub-Article (3) of Article 217 which provides for consultation with the Chief Justice of India. He contended that what has been held by the Supreme Court while construing the provisions of Clause (3) of Article 217 may not hold good while construing the provisions of section 351(1)(a) of the Corporation Act.
14. Mr. Thorat then invited my attention to the observations of the Supreme Court in the case of Smt. Maneka Gandhi v. Union of India and another, reported in : [1978]2SCR621 . He relied upon the judgment of Bhagwati, J., (as he then was). In particular he relied upon the observation in para 57 at page 624 of the report which are as under:
'Now it is true that there is no express provisions in the Passport Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question, if the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Cooper v. Wandsworth Board of Works, (1863) 14 C.B.N.S. 180: 'A long course of decisions, beginning with Dr. Bentley's, case, (1723) 1 Str. 557 and ending with some very recent cases establish that although there are no positive words in the statute requiring that the party shall be heard yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem which mandates that no one shall be condemned unheard is part of the rules of natural justice.'
Similarly in para 58 of the report at page 625 it was observed thus:
'The rule was stated by Lord Denning, M.R. in these terms in Schmidt v. Secy. of State for Home Affairs, (1969)2 Ch.D. 149 'where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representation on his own behalf.'
15. Both the learned Counsel have also invited my attention to a few more cases which are as under:
In S.L. Kapoor v. Jagmohan and others, reported in : [1981]1SCR746 , the question was about the supersession of the New Delhi Municipal Committee under the Punjab Municipal Act, 1911. Dealing with the question of principles of natural justice, the Supreme Court observed thus in para 16 at page 145 of the report as under:
'Thus on a consideration of the entire material placed before us we do not have any doubt that the New Delhi Municipal Committee was never put on notice of any action proposed to be taken under section 238 of the Punjab Municipal Act and no opportunity was given to the Municipal Committee to explain any fact or circumstance on the basis (of which) that action was proposed. If there was any correspondence between the New Delhi Municipal Committee and any other authority about the subject matter or any of the allegations, if information was given and gathered it was for entirely different purposes. In our view, the requirements of natural justice are met only if opportunity to is given in view of the proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purposes. We do not suggest that the opportunity need be a `double opportunity' that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met. We disagree with the finding of the High Court that the Committee had the opportunity to meet the allegations contained in the order of supersession.'
It has been further observed in para 17 as under:
'Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or in disputable facts speaking for themselves, where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approved the nonobservance of natural justice but because the courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly and penalties are discretionary.'
16. In the case of Swadeshi Cotton Mills etc. etc. v. Union of India, reported in : [1981]2SCR533 , the question was of taking over of undertaking without investigation, under the provisions of Industries (Development and Regulations) Act, 1951. It has been observed in para 42 at pages 831 and 832 of the report as under:
'In short, the general principle-as distinguished from an absolute rule of uniform application-seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short this rule of fairplay 'must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands.'
The Court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modification. But, to recall the words of Bhagwati, J., the core of it must, however, remain, namely that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.'
17. Coming to the case of Olga Tellis and others v. Bombay Municipal Corporation and others, reported in : AIR1986SC180 , the Supreme Court was concerned with the scope of the provisions of section 314 of the Corporation Act dealing with the powers to remove, without notice, anything erected, deposited or hawked in contravention of sections 312, 313 or 313-A of the said Act. This was a case of pavement dwellers. Section 314 opens with the words: 'The Commissioner may, without notice, cause to be removed:
a) .....
b) .....
c) ....
In Olga Tellis' case the Corporation had filed an affidavit setting out the details of the census that was carried on 4th January 1976 to enumerate the slum dwellers spread over about 850 colonies all over Bombay on the basis of which the hutments were numbered and occupants were given identity cards. Summing up the entire discussion the Supreme Court observed in para 57 at page 204 as under:
'To summarise, we hold that no person has the right to encroach by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or earmarked for a public purpose like, for example, a garden or a playground; that the provision contained in section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; and that, the Kamraj Nagar Basti is situated on an accessory road leading to the Western Express Highway. We have referred to the assurances given by the State Government in its pleadings here which we repeat, must be made good. Stated briefly, pavement dwellers who were censured or who happened to be censured in 1976 should be given, though not as a condition precedent to their removal alternate pitches at Malavani or, at such other convenient place as the Government considers reasonable but not further away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their resettlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for public purpose, in which case, alternate sides or accommodation will be provided to them; the 'Low Income Scheme' 'Shelter Programme' which is proposed to be undertaken with the aid of the World Bank will be pursued earnestly and, the `Slum Upgradation Programme (SUP)' under which basic amenities are to be given to slum dwellers will be implemented without delay. In order to minimise the hardship involved in any eviction, we direct that the slums, where-ever situated, will not be removed until one month after the end of the current monsoon season, that is, until October 31, 1985 and, thereafter only in accordance with this judgment. If any slum is required to be removed before that date parties may apply to this Court. Pavement dwellers, whether censured or un-censured, will not be removed until the same date viz. October 31, 1985.'
18. My attention has been invited by both the Counsel to the case of Institution of Chartered Accountants of India v. L.K. Ratna and others, reported in : [1987]164ITR1(SC) . The Supreme Court was considering the scope of the provisions of section 21 of the Chartered Accountants' Act, 1944 providing for procedure and enquiry relating to the misconduct of the members of the institute. After the disciplinary committee had made a report to the Council to the effect that the member of the Institute was guilty of any professional or other misconduct, it was for the Council under sub-section (3) of section 21 to record a finding accordingly and then to proceed in accordance with the manner laid down in sub-section (4) onwards. One of the lacunae in that case was that the members of disciplinary committee had also participated in the proceedings of the Council when it came to the conclusion that the respondent Ratna, Behl and Bhoopatkar were guilty of misconduct. It was in these facts that the Supreme Court observed in para 19 and 29 of the judgment as under:
'Upon the aforesaid considerations, we are of definite opinion that a member accused of misconduct is entitled to a hearing by the Council when, on receipt of the report of the Disciplinary Committee it proceeds to find whether he is or is not guilty. The High Court is, therefore, right in the view on this plaint.'
It was observed in para 29 as under:
'Accordingly, we concur with the High Court that the findings of the Council holding the respondents Ratna, Behl and Bhoopatkar guilty of misconduct is vitiated by the participation of the members of the Disciplinary Committee.'
19. In the case of R.S. Dass v. Union of India, reported in : [1987]1SCR527 of the judgment it has been observed thus:
'In Chairman, Board of Mining Examination v. Ramjee, : [1977]2SCR904 Krishna Iyer, J., speaking for the Court observed: 'Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against the form, features and the fundamentals of such essential processual property being conditioned by the facts and circumstances of such situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction.'
'It is well established that rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail its application depends upon the facts and circumstances of each case. These principles do not apply to all cases and situations. Application of these uncodified rules are often excluded by express provision or by implication. In Union of India v. Tulsiram Patel : (1985)IILLJ206SC , a Constitution Bench of this Court considered the scope and extent of applicability of principles of natural justice to administrative action. Madan, J., summarised the position of law on this point and observed as follows: 'So far as the audi alteram partem rule is concerned both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action such a right can be excluded. This right can also be excluded where the nature of the action to be taken its objects and purpose and the scheme of the relevant statutory provisions warrant its exclusion, nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi's case : [1978]2SCR621 :
In the instant case statutory regulations do not expressly or by implication apply the rule of audi alteram partem in making the selection. On the other hand the scheme contained under the regulations exclude the applicability of the aforesaid rule by implication. Select list is prepared each year which ordinarily continues to be effective for a year or till the fresh select list is prepared. If during the process of selection a senior officer is proposed to be superseded by virtue of not being included in the select list, and if opportunity is afforded to him to make representation and only thereafter the list is finalised, the process would be cumbersome and time consuming. In this process it will be difficult for the committee to prepare and finalise the select list within a reasonable period of time and the very purpose of preparing the select list would be defeated. Scheme of the Regulations therefore, clearly warrants exclusion of principle of audi alteram partem. No vested legal right of a member of the State Civil Service who after being considered is not included in the select list, is adversely affected. Non inclusion in the select list does not take away any right of a member of the State Civil Service that may have accrued to him as a Government servant, therefore, no opportunity is necessary to be afforded to him for making representations against the proposed supersession.'
20. Finally Mr. Thorat invited my attention to the decision of the Supreme Court in the case of Km. Neelima Misra v. Dr. Harinder Kaur Paintal and others, reported in : AIR1990SC1402 . This was a case where the Chancellor of the Lucknow University, while exercising powers under section 31(8)(a) of the Uttar Pradesh University Act, 1973 had directed that Km. Misra, the appellant, should be appointed as a Reader in Psychology in the University. That order was quashed by the Allahabad High Court in the writ petition at the instance of Dr. Harinder Kaur Paintal. The said decision of the Allahabad High Court was challenged before the Supreme Court by Kum. Misra. Allowing the appeal of Kum. Misra the Supreme Court observed thus in paras 22 and 23 at page 1409 as under:
'An administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin Maxim Audi alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. A large number of authorities are on this point and we will not travel over the field of authorities. What is now not in dispute is that the person concerned must be informed of the case against him and the evidence in support thereof and must be a fair opportunity to meet the case before an adverse decision is taken. Ridge v. Baldwin, 1963 (2) All E.R. 66 supra ; State of Orissa v. Dr. Binapani Dei : (1967)IILLJ266SC .
The shift now is to a broader notion of 'fairness' or 'fair procedure' in the administrative action. The administrative officers are concerned, the duty in not so much to act judicially as to act fairly. See Keshav Mills Co. Ltd. v. Union of India : [1973]3SCR22 , Mohinder Singh Gill v. Chief Election Commissioner : [1978]2SCR272 , Swadeshi Cotton Mills v. Union of India, : [1981]2SCR533 and Management of M/s. M.S. Neily Bharat Engineering Co. Ltd. v. The State of Bihar, Civil Appeal No. 1102 of 1990, decided on February 9, 1990. For this concept of fairness, adjudicative setting are not necessary, nor it is necessary to have list inter parties. There need not be any struggle between two opposing parties giving rise to a `lis'. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or 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 in the administration. But when even such an administrative decision unless it affects one's personal rights or one's property rights, or the loss of or prejudicially affects something which would juridically be called at least a privilege does not involve the duty to act fairly consistent with the rules of natural justice. We cannot discover any principle contrary to this concept.'
21. My attention has then been invited by Mr. Singhvi to some of the standard books on administrative law. In his treatise on administrative law by Prof. H.W.R. Wade, 6th edition, in chapter 15 dealing with the right to a fair hearing, under the sub-head Audi Alteram Partem, at page 496 it has been observed as under:
'It does not follow that it need be modelled strictly on Court procedure: hearings need not always be oral hearing, nor need sources of a evidence always be disclosed. But in general the notion of a fair hearing extends to the right to have notice of the other side's case, the right to bring evidence and the right to argue.'
Again at page 543 of the said 6th edition under the subheading 'Procedure Generally' it has been observed as under:
'A `hearing' will normally be an oral hearing. But in some cases it may suffice to give an opportunity to make representations in writing, provided that any adverse material is disclosed and provided, as always, that the demands of fairness are substantially met.' Prof. de Smith in his treatise 'Judicial Review of Administrative Action', Fourth edition has observed thus at page 201 while dealing with the content of the Audi Alteram Partem Rule under subheading 'form of the hearing'.
'In this book the word `hearing' has generally been used in a broad sense to include the making of written representations. When we have spoken of an opportunity or a right to be 'heard', we have not necessarily meant an opportunity or right to be heard orally. It must be pointed out, however, that when the words 'hearing' or 'opportunity' to be 'heard' are used in legislation, they nearly always denote a hearing at which oral submissions and evidence may be tendered. In some legislative contexts the term 'hearing' is used in contrast to 'inquiry'. In practice a hearing may be held in private, though members of the general public are not necessarily excluded; the conduct of both hearings and inquiries in town planning matters is oral and is now governed by similar procedural rules.
In the absence of clear statutory guidance on the matter, one who is entitled to the protection of audi alteram partem rule is now prima facie entitled to put his case orally; but in a number of contexts the courts have held natural justice to have been satisfied by an opportunity to make written representations to the deciding body, and there are still many situations where a person will be able to present his case adequately in this way.'
22. Geoffrey A. Flick in his book 'Natural Justice Principles and Practical Application' published by Butterworths has observed thus at page 14 under the topic 'Written Representations'.
'Although one who is entitled to the protection of the audi alteram partem rule is prima facie entitled to an oral hearing (de Smith at 177), it is not necessarily a denial of natural justice for a tribunal to receive and rely upon written representations. Nor is it necessarily a denial of due process. Provided a party is given a fair and adequate opportunity to present his case, it should be within the discretion of a tribunal whether it proceeds by way of an oral or written hearing.'
In Garner's Administrative Law, 7th edition published by Butterworths in 1989 it has been observed as under at pages 179 and 180:
'As the range of contexts in which the rule applies has, particularly in recent years, been extended, the courts have, perhaps inevitably, stressed the flexibility of the rule in terms of the variable content of the obligations imposed. The basis idea remains in each case that due warning be given of an impending decision or action, that due notice be given of matters to be taken into account or the `charges' against the citizen, and an adequate opportunity be afforded to the citizen to make representations prior to the final decision or action being taken. What will actually be required to have been done to satisfy these basic obligations may vary much from one context to another (i.e. what is due notice, or adequate information, or fair opportunity to state one's case, will depend on context). As Megaw L.J., stressed in R.V. Board of Visitors of Hull Prison, exp. St. Germain, it is `fallacious to assume, as appears frequently to be assumed, that the requirements of natural justice in one sphere are necessarily identical in a different sphere.' In some contexts the obligations may be far reaching.'
In the second edition of Administrative Law by P.P. Craig, a Sweet and Maxwell publication, of 1989 under the heading 'The hearing' it has been observed as under:
'Two of the most important aspects of the hearing are the type of hearing required and the rules of evidence that will apply.
While hearings will normally be oral, there is no fixed rule that this must be so. The courts will, however, avoid construing a statute so as to dispense with a hearing completely. A statute empowering a public body to dispense with a hearing will, for example, be interpreted to allow oral hearing to be omitted; courts will lean against allowing a tribunal to decide a matter without giving the individual a chance to see the opposing case and have his own considered. Furthermore, while an individual can waive his right to a hearing, it will not always be an option open to him. Thus, in Hanson v. Church Commissioners, it was held that where the matter was one in which there was a wider public interest it may not be possible for one party to withdraw without the assent of the other once the proceedings were begun. Even if both agreed the issue might not be withdrawn if the tribunal objected.'
23. On a consideration of all the relevant authorities discussed above, in my view, it is difficult to hold, in the scheme of the provisions of Clause (a) of sub-section (1) of section 351 of the Corporation Act, that it is obligatory on the Municipal Commissioner to give oral or personal hearing to the citizen in each and every case. As observed by S. Subba Rao, J., in the case of Madhya Pradesh Industries Ltd. v. Union of India and others, reported in : [1966]1SCR466 (supra), the opportunity need not necessarily be by a personal hearing. It can be by written representations. Whether the said opportunity should be by written representation or by personal hearing depends upon the facts of each case and, ordinarily, it is the discretion of the tribunal. It is not necessary for me, for the purpose of deciding this appeal, to go into the larger question as to whether oral hearing is a necessary concomitant of the principles of natural justice. Several Supreme Court judgments quoted above suggest otherwise. However, suffice it to say that, in the scheme of Clause (a) of sub-section (1) of section 351 oral or personal hearing is not a must. It cannot, therefore, be said that failure to give oral or personal hearing but giving notice to show sufficient cause why such building or work should not be removed, altered or pulled down would not be sufficient compliance with the principles of natural justice. I must hasten to add that there may be cases where, in its discretion, the Corporation may think it necessary to issue notice under Clause (b) of sub-section (1) of section 351 which does contemplate an oral or personal hearing. This, however, as observed by the Supreme Court in some of the cases discussed above, must be left to the discretion of the concerned authority. There may be cases, for instance, where on evidence before him two views may clearly emerge and the D.M.C. may require assistance of the party and, therefore, think it necessary to give such party, oral hearing. The documents may be, prima facie, suspicious and may need some clarification. There may be some ambiguities which may have to be cleared by hearing the party. In such and similar other cases, the D.M.C. may in his discretion decide to exercise his powers under Clause (b) of sub-section (1) of section 351 of the Corporation Act. However, on the other hand, there may be cases where no two views are possible and on the material on record the only conclusion that can be arrived at is the one clearly against the citizen. In such a case, as the Supreme Court says, it may be futile to indulge in the exercise of an oral hearing. This has been clearly observed in para 17 of the judgment in S.L. Kapoor's case reported in : [1981]1SCR746 , quoted in para 15.
24. Shri Thorat, however, contends that in the very scheme of the provisions of section 351 the word 'or' appearing at the end of Clause (a) of sub-section (1) of section 351 should be read as 'and'. His contention is that this disjunctive 'or' should be read as conjunctive 'and'. According to the learned Counsel, there are no guidelines to enable the Deputy Municipal Commissioner to decide in which case he should proceed either under Clause (a) or under Clause (b). I have already indicated above, in para 23, some of the cases in which the D.M.C. may exercise his powers or discretion either under Clause (a) or under Clause (b). I must make it clear that the situations mentioned by me in para 23 are only illustrative and are not meant to be exhaustive. It is true that the disjunctive word 'or' can be read as a conjunctive namely 'and' and vice versa. In his treatise 'Principles of Statutory Interpretation' by Justice G.P. Singh, 5th edition of 1992 at page 272 under the heading' Conjunctive and disjunctive words 'or' and 'and' it has been observed as under:
'The word `or' is normally disjunctive and `and' is normally conjunctive but at times they are read as vice versa to give effect to the manifest intention of the Legislature as disclosed from the context. As stated by Scrutton, L.J. 'You do sometime read `or' as `and' in a statute. But you do not do it unless you are obliged because `or' does not generally mean `and' as `and' does not generally mean `or'. And as pointed by Lord Halsbury the reading of `or' as `and' is not to be resorted to, unless some other part of the same statute or the clear intention of it requires that to be done.' But if the literal reading of the words produces an unintelligible or absurd result `and' may be read for `or' and `or' for `and' even though the result of so modifying the words is less favourable to the subject provided that the intention of the Legislature is otherwise quite clear.'
25. In this connection, Mr. Singhvi has invited my attention to the decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Tek Chand Bhatia, reported in : 1980CriLJ316 . In para 11 of the said judgment at page 363 it has been observed as under:
In Stroud's Judicial Dictionery, 3rd Edn., Vol. 1, it is stated at p. 135:
'And' has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together, and herein it is the antithesis of OR. Sometimes, however, even in such a connection, it is, by force of a context, read as `or'.
While dealing with the topic 'or' is read as AND, and vice versa' Stroud says in Vol. 3 at p. 2009:
'You will find it said in some cases that `or' means `and'; but `or' never does mean `and'.
Similarly in Maxwell on Interpretation of Statute, 11th Edn. pp. 229-30, it has been accepted that 'to carry out the intention of the legislature it is occasionally found necessary to read the conjunctions 'or' and 'and' one for the other. The word 'or' is normally disjunctive and 'and' is normally conjunctive, but at times they are read as vice versa. As Scrutton, L.J., said in Green v. Premier Glynbonwy Slate Co., (1928) 1 K.B. 561, 'you do some times read 'or' as 'and' in a statute.....But you do not do it unless you are obliged, because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. As Lord Halsbury L.C., observed in Mersey Docks & Harbour Board v. Handerson, (1888)13 A.C. 595, the reading of 'or' as 'and' is not to be resorted to 'unless some other part of the same statute or the clear intention of it requires that to be done.' The substitution of conjunctions, however, has been some times made without sufficient reasons, and it has been doubted whether some of cases of turning 'or' into 'and' and vice versa have not gone to the extreme limit of interpretation.'
26. In view of the above principles, it is not possible to say that the reading of the word 'or' appearing at the end of Clause (a) of sub-section (1) of section 351 of the Corporation Act as 'and' has become necessary or that the clear intention of the statute requires such a reading. I have already indicated above, some of the situations in which the Deputy Municipal Commissioner may, in his discretion, exercise powers either under Clause (a) or under Clause (b) of sub-section (1) of section 351. It is, therefore, not possible to accept Mr. Thorat's contention that the word `or' though used as disjunctive at the end of Clause (a) should be read as conjunctive to mean `and'. Mr. Singhvi has also contended that while considering the contention of the appellant, it has to be borne in mind that the entire scheme of section 351 is in public interest and is in the interest of the health, sanitation and safety of the people at large. In my view, this is so. It is also of some relevance to note that the Deputy Municipal Commissioner exercises the powers of the Municipal Commissioner under section 351 of the Corporation Act by virtue of the provisions of section 56 of the Corporation Act. Sub-section (3) of section 56 provides as under:
'All acts and things performed and done by (the Director of a Deputy Commissioner) (and an Additional Deputy Commissioner), during his tenure of the said office and in virtue thereof, shall for all purposes be deemed to have been performed and done by the Commissioner.'
This is not a case of delegation of powers under section 68. A perusal of section 68 of the Corporation Act would show that it makes no reference to section 351 in the long list of sections under which the powers can be delegated by the Municipal Commissioner to a subordinate officer. Mr. Singhvi is, therefore, justified in contending that the power is exercised by a Senior Officer of the Corporation and it is in public interest.
27. In view of the above, as stated in para 23, in the scheme of the provisions of Clause (a) of section 351 an oral or personal hearing is not a necessary concomitant of the principles of natural justice. It is enough if the notice to show sufficient cause why such building or work should not be removed or altered or pulled down is issued under Clause (a) of sub-section (1) of section 351 of the Corporation Act. There may be cases where, as indicated above, the Deputy Municipal Commissioner, may in his discretion, think it necessary to give oral or personal hearing.
28. The view I am taking is also the view taken by two learned Single Judges of this Court in their orders disposing of two appeals from order at the admission stage, viz., (i) A.O. No. 42 of 1988 decided by Daud, J., on 29th January 1988 and (ii) A.O. No. 637 of 1992 decided by A.C. Agarwal, J., on 30th June 1992. Apart from these two orders passed at the admission stage, Kantharia, J., has taken the same view while finally disposing of the Appeal from Order No. 28 of 1983 on 6th September 1989.
29. Coming to the merits of the case, however, it appears that the appellant did offer to produce evidence which was in his possession. His reply dated 17th March 1992 does mention that he is in possession of postal letters, municipal assessment bills, counterfoils of rent receipts, property card relating to the structure. It is true that he did ask for oral hearing. The Deputy Municipal Commissioner has issued a cyclostyled order ticking the first four items and crossing the next four items. In the facts of the present case I am of the view that the appellant was not given sufficient opportunity to show cause against the proposed action. In the peculiar facts and circumstances of the case, therefore, I think that interests of justice would be met by directing the Deputy Municipal Commissioner to consider the matter afresh after given an opportunity to the appellant to produce the evidence in support of his contentions. The learned Counsel for the parties are agreed that the relevant cut of date, as far as the residential structures are concerned, is 17th April 1964. However, Mr. Thorat for the appellant contends that, if the Corporation has revised its policy and the cut of date has been extended, the appellant may be given liberty to produce such material before the Deputy Municipal Commissioner. Needless to say that if the appellant produces any such resolution of the Corporation extending the cut of date beyond 17th April 1964, the Deputy Municipal Commissioner will consider the effect of the same, in the facts and circumstances of the case, in accordance with law.
30. Having regard to the large number of cases which came to this Court dealing with the question of demolition under section 351 of the Corporation Act, it would be in the public interest if the Corporation decides, as a matter of policy, to keep the photographs of the disputed structure on record forming part of what the Corporation calls 'action papers'. In many cases there is a controversy as to what exactly the structure is and of what it is made. In a case before me what was described an extension of weather shed turned out, on photographs being produced before me, to be a regular room converted from enclosure of the balcony. When the photograph was shown to the advocate for the appellant, on taking instructions from the appellant, the Counsel did not even argue the matter further. In another case the extension was so large and so much protruding on a public place that was a serious hazard to public safety. The Corporation may be well advise to direct the concerned officer to take the photographs from all angles so that the Court can get a proper view of the alleged offending structure.
31. Hence the following order;
i) The impugned order dated 29th June 1992 is set aside.
ii) The appellant is directed to produce all the material, relevant to the issue, before the Deputy Municipal Commissioner by the end of September 1992. The appellant is directed to produce all the relevant resolutions, circulars and such other evidence as is referred to in his reply dated 17th March, 1992 and/or as is relevant for deciding the point in dispute.
iii) The Deputy Municipal Commissioner will consider this additional material along with the material which is already on record and decide the question in accordance with law in the light of the provisions of section 351 of the Corporation Act. The Deputy Municipal Commissioner is directed to pass a reasoned order.
iv) In the event of an order adverse to the interests of the appellant being passed, the same shall not be implemented for a period of two weeks after the service of the said order on the appellant.
v) Pending all the above steps, there shall be an injunction in terms of prayer (a) of the notice of motion.
vi) The appellant will be at liberty to take appropriate proceedings for challenging the fresh order that may be passed by the Deputy Municipal Commissioner.
vii) The appeal allowed. However, in the facts and circumstances of the case, there will be no order as to costs.
viii) In view of the order in appeal, no order is necessary in the Civil Application No. 3133 of 1992.