Quashed

Subash Ch.Bhanja v. Sarpanch,Jamgaon G.P

Orissa HC4 Nov 2024WP(C)/13421/2009

Case brief

AI extract

What is this about?

The High Court of Orissa held that the cancellation of the petitioner's residential certificate without a prior hearing was unsustainable. The court acted upon the lack of evidence showing a hearing was held and quashed the impugned orders by the authority and appellate authority, remitting the matter for fresh decision.

What did the court decide?

Quashed the cancellation order passed on 05.04.2008 by Opp. Party No. 4 and the confirmation order passed on 26.08.2009 by Opp. Party No. 5; remitted the matter to Opp. Party No. 4 for a fresh decisio

Subash Ch.Bhanja Vs Sarpanch,Jamgaon G.P — Service and Employment | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.13421of 2009

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Subash Ch. Bhanja

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..... Petitioner

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Mr. H.S. Mishra, Advocate

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-versus-

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Sarpanch, Jamgaon Gram ..... Opposite Parties Panchayat & Ors. Mr. A. Tripathy, AGA

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CORAM:

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THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER

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04.11.2024

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Order No.16

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This matter is taken up through hybrid mode.

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2.Heard Mr. H.S. Mishra, learned counsel appearing for the Petitioner and Mr. A. Tripathy, learned Addl. Govt. Advocate appearing for the Opp. Parties.

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Petitioner has filed the present writ petition inter alia challenging order dtd.05.04.2008 so passed by Opp. Party No. 4 under Annexure8, further confirmed by the appellate authority-Opp. Party No. 5 vide order dtd.26.08.2009 under Annexure-12.

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It is the main contention of the learned counsel appearing for the Petitioner that Petitioner after due consideration of his application was issued with the residential certificate on 25.04.2007 under Annexure-5 in Residential Certificate Case No. 2384 dtd.25.04.2007. It is contended that thereafter without giving any opportunity of hearing and without issuing any notice whatsoever, the certificate issued under Annexure-5 was cancelled vide order dtd.05.04.2008 under Annexure-8 by Opp. Party No. 4.

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Page 1 of 4.

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4.1. It is contended that challenging such order Petitioner filed Misc. Certificate Appeal No. 3/2008 under Annexure-9 before Opp. Party No. 5. In the said appeal though a specific stand was taken that Petitioner was never given any opportunity of hearing, but without considering that aspect, the appellate authority rejected the appeal vide order dt.26.08.2009 under Annexure-12 and thereby confirming the order passed under Annexure-8.

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4.2. It is contended that since prior to cancellation of the certificate so issued under Annexure-5 Petitioner was never given an opportunity of hearing, the impugned order is not sustainable in the eye of law and liable to be interfered with by this Court. In support of the aforesaid contentions, Petitioner relied on the decision of the Hon’ble Apex Court in the case of State Bank of India And Others Vs. Rajesh Agarwal & Ors., (2023) 6 SCC 1.

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4.3. Hon’ble Apex Court in Para 41 & 42 of the Judgment in the case of Rajesh Agarwal has held as follows:-

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“41. In State of Orissa v. Binapani Dei [State of Orissa v. Binapani Dei, AIR 1967 SC 1269], a two-Judge Bench of this Court held that every authority which has the power to take punitive or damaging action has a duty to give a reasonable opportunity to be heard. This Court further held that an administrative action which involves civil consequences must be made consistent with the rules of natural justice : (AIR p. 1271, para 9)

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“9. … The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially

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Page 2 of 4.

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would therefore arise from the very nature of the function intended to be performed : it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.”

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42. In Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , a sevenJudge Bench of this Court held that any person prejudicially affected by a decision of the authority entailing civil consequences must be given an opportunity of being heard. This has been reiterated in a catena of decisions of this Court.”

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Mr. A. Tripathy, learned Addl. Govt. Advocate on the other hand contended that in the impugned order it has been clearly indicated that Petitioner after being provided with due opportunity of hearing, certificate so issued under Annexure-5 was cancelled vide Annexure8. It is contended that the appellate authority after due consideration of the grounds of appeal, confirmed the same while rejecting the appeal vide order under Annexure-12. It is accordingly contended that since as found from the impugned order Petitioner was given due opportunity of hearing, stand taken by the Petitioner that Petitioner was not given due opportunity of hearing cannot be believed.

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Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the Petitioner was issued with the resident certificate on 25.04.2007 under Annexure-5 in Residential Certificate Case No. 2384 dtd.25.04.2007. Even though a stand has been taken that Petitioner was given due opportunity of hearing prior to cancellation of the certificate vide

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Page 3 of 4.

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order dtd.05.04.2008 under Annexure-8, but no document whatsoever has been enclosed to the counter affidavit showing issuance of any such notice on the Petitioner.

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6.1. Even though LCR from the court below was called for, but a report has come that the LCR is not available. In view of the aforesaid analysis, this Court is of the view that the matter requires fresh adjudication by Opp. Party No. 4. Therefore, this Court is inclined to quash order dtd.05.04.2008 so passed by Opp. Party No. 4 under Annexure-8 further confirmed by Opp. Party No. 5 vide order dtd.26.08.2009 under Annexure-12. While quashing both the orders, this Court remits the matter to Opp. Party No. 4 to take a fresh decision with regard to cancellation of the certificate so issued in favour of the Petitioner under Annexure-5.

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6.2. In order to avoid delay, Petitioner is directed to produce a copy of this order before Opp. Party No. 4 within a period of two (2) weeks from the date of receipt of this order. On production of the certified copy, Opp. Party No. 4 shall permit the Petitioner four (4) weeks time to file his objection to the proposed cancellation. On receipt of the objection within the aforesaid time period Opp. Party No. 4 shall take a lawful decision on the same within a period of two (2) months. It is however observed that if Petitioner as directed fails to appear before Opp. Party No. 4, effect of this order will automatically lapse and order dt.05.04.2008 will be revived.

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The writ petition is disposed of accordingly.

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Signature Not Verified

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Digitally Signed Signed by: SNEHANJALI PARIDA Sneha Reason: Authentication Location: High Court of Orissa, C utta ck Date: 07-Nov-2024 17:22:06

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(BIRAJA PRASANNA SATAPATHY) Judge

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Page 4 of 4.

Subash Ch.Bhanja v. Sarpanch,Jamgaon G.P

Case brief

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Subash Ch.Bhanja v. Sarpanch,Jamgaon G.P

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