Judgment:
A. Pasayat, Acting C.J.
1. In this writ application Dera Grama Panchayat challenges the order dated 2.7.1999 passed by the Collector, Kendrapara to the effect that the Sairat which was transferred to the Grama Panchayat for management by order dated 2.2.1999 stood revoked.
2. Petitioner's stand in essence is that such action even without grant of opportunity to have its say in the matter was in clear violation of the principles of natural justice..Stand of the opposite parties in the counter affidavit filed indicates that several factors weighed with the authorities in revoking the earlier order of settlement of the sairat. It is stated that undisputedly the property belongs to the State and in case of mismanagement it has power to withdraw the property and as statute does not postulate grant of an opportunity, petitioner cannot make a grievance.
3. The property was transferred in exercise of power conferred Under Section 73 of the Orissa Grama Panchayats Act, 1965 (in short, the 'Act'). At this juncture, it is necessary to take note of a few provisions appearing in Chapter VII of the Act, more particularly Sections 71 and 73. They read as follows :
'71. Vesting of public properties in Grama Sasan -
(1) All property within the Grama of the nature hereinafter in this section specified, other than property maintained by any other local authority or the Central or State Government, shall for the purposes of this Act, vest in the Grama Sasan and shall, with all other properties of whatever nature or kind which may become vested in the Grama Sasan, be under its direction, management and control, that is to say -
(a) all public sewers and drains, all works, materials and things appertaining thereto and other conservancy works;
(b) all sewage, rubbish and offensive matters deposited on the streets or collected by the Grama Panchayat from streets, latrines, urinals, sewers, cess-pools and other places;
(c) all public lamps, lamp posts and apparatus connected therewith or appertaining thereto; and
(d) all buildings and other works constructed by the Grama Sasan and all lands and buildings or other property transferred to the Grama Sasan by the Central or the State Government or acquired by gift, purchase or otherwise for local public purposes.
(2) The State Government may from time to time by general or special order made in that behalf exclude from the operation of this Act or any specified section of this Act any of the properties of the nature specified in Sub-section (1).
(3) Properties within the Grama belonging to, maintained, managed or controlled by the State Government shall, on the issue of general or special orders made from time to time by the State Government in that behalf and subject to the provisions of this Act and the rules made thereunder, and to such terms and conditions as may be specified in such order vest in the Grama, Sasan and be under its management, direction and control.
(4) Without prejudice to the generality of Sub-section (3) but subject to the provisions thereof properties of the nature herein specified shall vest in the Grama Sasan and be under its management, direction and control, that is to say -
(a) Village roads,
(b) Irrigation sources,
(c) Ferries,
(d) Waste lands and communal lands,
(e) Protected forests within the meaning of the Indian Forests Act, 1927 (16 of 1927) and unreserved forests within the meaning of the Madras Forest Act, 1882 (Madras Act 5 of 1882) in respect of the management, protection and maintenance thereof for timber, fuel, fodder and other purposes.
(f) Markets and fairs or such portions thereof as are held upon public land and or on land belonging to or under the control of Government together with such lands, and
(g) All income arising or accruing from any of the items of properties covered by the foregoing clauses.
xx xx xx73. Allocation of properties to and withdrawal of properties from the Grama Sasan - (1) The State Government may allocate to a Grama Sasan any public property situated within the' Grama and thereupon such property shall for the purposes of this Act and subject to such terms, conditions, limitations and restrictions as the State Government may from time to time impose in that behalf, vest in and come -under the management and control of the Gram Panchayat.
(2) Whenever in respect of any property vested in or under the management and control of the Grama Sasan the State Government consider it expedient in the general public interest so to do or whenever in their opinion the Grama Panchayat has failed to make proper use of such property, they may by general or special order direct the withdrawal of such property from the Grama Sasan and thereupon such property shall vest in and be under the direction, management and control of the State Government:Provided that the Grama Sasan upon such withdrawal shall not be entitled to any compensation except in respect of such improvements of a permanent nature made by the Grama Sasan as the State Government may deem proper.'
4. Sub-section (2) of Section 73 deals with the power of the State Government to withdraw the property from the Grama Sasan. Foundation for such action is the consideration of the State Government that it would be expedient in the general public interest so to do or whenever in their opinion the Grama Panchayat has failed to make proper use of such property. The withdrawal can be done by general or special order. Thereafter the property shall vest in and be under the direction, management and control of the State Government. The proviso to Sub-section (2) of Section 73 mandates that no compensation is payable upon such withdrawal except in respect of such improvements of a permanent nature has been made by the Grama Sasan.
5. The main question to be considered is whether before withdrawal the affected Grama Panchayat is required to be given an opportunity to have its say in the matter. Undisputedly a valuable right accrues on the Grama Panchayat upon transfer of the fishery right. Even though there is no provision in the statute, requirement of grant of an opportunity is in-built.
6. Even if it is accepted as urged by learned counsel for State that no specific provision is prescribed in the concerned statute to afford an opportunity before order of withdrawal was passed, yet principles of natural justice mandates it. The principles of natural justice must be read into the unaccepted interstices of the statute unless there is a clear mandate to the contrary. Natural justice is an inseparable ingredient of fairness and reasonableness. Observance of the principles is the pragmatic requirement of fair-play in action. The rules of natural justice operate as implied mandatory processual requirement, non-observance whereof invalidates the action. In the celebrated case of Cooper v. Wandswoth Board of Works : 1963 (143) ER 414, the principle was illuminatingly stated as follows :
'Even God did not pass a sentence upon Adam, before he was called upon to make his defence. Adam 'says God', where art thou' has thou not eaten of the tree whereof I commanded thee that 'thou should not eat''.
Since then the principle has been chiselled, honed and refined, enrichir;' its content. The right of a man to be heard in his defence is the most elementary protection. Natural justice is the essence of fair adjudication, deeply rooted in tradition, and conscience, to be ranked as fundamental. Before passing the order of withdrawal the petitioner ought to have been granted an opportunity to have its say.
7. Natural justice is another name for commonsense justice. Rules of natural justice are not codified cannons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice is a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
The expressions 'natural justice' and 'legal justice' do not present a water-right classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevalication. It supplies the omissions of a formulated law.
The adherence to principle of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties. These principles are well-settled. The first and foremost principle, is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limp of this principle. It must be precise and unambiguous. It should apprise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed against the person in absentia becomes wholly vitiated. Thus it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fairplay.
The principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial or quasi-judicial authority while making an order affecting those rights. These rules are intended to pi ent such authority from doing injustice.
What is meant by the term 'principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board, Ex parte AitoAue : (1914) 1 KC150 at p. 139, 83 LJC 86 described the phrase as sadly lacking in precision. In General Council of Medical Education and Association of United Kingdom v. Gunukman : 1943 AC 627 : (1948) 2 All ER 337, Lord Wright observed that it was not desirable to attempt 'to force it into any prosecuted bed' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give 'a full and fair opportunity' to every party of being heard.
Lord Wright referred to the leading cases on the subject. The most important of them is the Board of Education v. Rice : (1911) AC 179 : 80 LJKB 796, where Lord Lorburn, L.C. observed as follows :
'Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not and that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial...... The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari.'
Lord Wright also emphasised from the same decision the observation of the Lord Chancellor that the Board 'can obtain information in any way they think best always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view. To the same affect are the observations of the Earl of Salbourne, LC in Spackman v. Plumstead District Board of Works : (1885) 10 AC 229 : 54 LJMC 81, where the learned and noble Lord Chancellor observed as follows :
'No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially,and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.'
Lord Bolbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity of submitting to the person by whom decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted phrase 'Justice should not only be done, but should be seen to be done'.
8. The concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses in fraction of not merely property of personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
9. Natural justice has been variously defined by different Judges. A few instances will suffice. In Draw v. Draw and Labura (1855) 2 Macg. 1.8, Lord Cranworth defined it as 'universal justice'. In James Dunber Smith v. Her Majesty The Queen (1877-78) 3 App. Case 614, 623 JC Sir Robort P. Collier, speaking for the Judicial Committee of the Privy Council, used the phrase : 'the requirements of substantial justice', while in Arthur John Speckman v. The Plumstead District Board of Works: (1844-85) 10 App. Case 229, 240, Earl of Solbourne, L.C. preferred the phrase 'the substantial requirements of justice'. In Voinet v. Barrett : (1935) 55 LJRD 39, 41, Lord Esher, N.R.defined natural justice as 'the natural sense of what is right and wrong'. While, however, deciding Hookings v. Smathwick Local Board of Health : (1890) 24 QBD 712, 716, Lord Farher, M.R. instead of using the definition given earlier by him in Voinet v. Barrett {supra) chose to define natural justice as 'fundamental justice'. In Sidge v. Baldwin : (1953) 1 US 589 Harman LJ, in the Court of Appeal countered natural justice with 'fair-ply in action' a phrase favoured by Bhagawati, J. in Maneka Gandhi v. Union of India : (1978) 2 SCR 621, 676 : AIR 1978 SC 597 at pp. 625-626. In re. R.N. An Infant) (1967) 2 B 617, 530 Lord Parker, CJ. preferred to describe natural justice as 'a duty to act fairly'. In Fairmount Investments Lrd. v. Secretary to State for the Environment : (1976) 1 WLR 1255, 1265 Lord Russel of Willow en somewhat picturesquely described natural justice as 'a fair crack of the whip', while Geoffery Lane, LJ in Ragina v. Secretary of State for the Home Affairs Ex parte Rosenball : 1977 1 WLR 766, 784 preferred the homely phrase 'common fairness'.
10. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua' as stated in (1605) 12 Co. Rep. 114, that is, 'no man shall be a judge in his own cause'. Coke used the form 'aliquis non debet esse judex in propria causa quia non potest esse judex at pars' (Co. Litt. 1418), that is, 'no man ought to be a judge in his own cause, because he cannot act as Judge and at the same time be a party'. The form 'nemo potest esse simul actor et judex that is, 'no one can be at once suitor and judge' is also at times used. The second rule and that is the rule with which we are concerned in this writ petition is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries the form 'audietur at altera pars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely, 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquem facerii', that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right'. (See Roswell's case : (1605) 6 Co. Rep. 48-b, 52-a), or in other words, as it is now expressed 'justice should not only be done but should manifestly be seen to be done'.
11. That being the position, the withdrawal without grant of an opportunity to the petitioner would not be proper. Since the reasons which weighed with the authorities for making for withdrawal have been indicated in the counter affidavit filed, let the petitioner furnish its show- cause by 28th August, 1999. If no show-cause is furnished on or before the aforesaid date, it shall be open to the opposite parties to take action as is available in law. We make it clear that we have not expressed any opinion on merit as we have interfered with the matter because of non- grant of opportunity.
The writ application is allowed to the extent indicated above. No costs.
P.K. Patra, J.
12. I agree.