TMI Blog1970 (3) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the land in question. The first petitioner, therefore, made an application dated April 1, 1969, to the then Municipal Commissioner of Baroda under ice. 253 of the Act, giving notice of his intention to erect a building consisting of a basement, shopping area, offices, restaurant and residential tenements. Necessary plans, maps, documents etc., required to be furnished under the relevant bye-laws of the second respondent Municipal Corporation were annexed to the application. On May 16, 1969, a meeting was held at which the then Municipal Commissioner, the Town Development Officer, petitioners Nos. 1 to 3 and their Architect were present. At the said meeting, the plans submitted by the first petitioner for the construction of the proposed building were discussed and certain objections in regard to the plans were pointed out to the three petitioners. On June 20, 1969, fresh plans were submitted to the then Municipal Commissioner and, according to the respondents, the Architect of the first petitioner had assured the then Municipal Commissioner that the plans were revised to comply with all the objections raised at the earlier meeting and that the plans were in accordance with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctober 24, 1969, directed the first petitioner to have a preliminary discussion with the Town Planner in the matter. 7. A meeting between petitioners Nos. 1 and 2 on one hand and the Town Planner on the other appears to have been held on October 27, 1969. The Town Planner appears to have pointed out to petitioners Nos. 1 and 2 the objections as well as the alleged misleading and fraudulent statements which were made by the first petitioner in the notice given and information furnished by him under Section 253 of the Act. The Town Planner asked petitioners Nos. 1 and 2 to give an explanation and it is the case of the petitioners that their stand in the matter was orally clarificant the said meeting. Ultimately, the first petitioner received the letter dated November 5, 1969, from the Town Planner requesting him to submit fresh plans in respect of the building proposed to be erected on his land for complying with the bye-laws and regulations of the second respondent Municipal Corporation. 8. The petitioners have thereupon approached this Court praying that an appropriate writ or direction be issued quashing and setting aside the order dated October, 13, 1969, passed by the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fers power upon the Municipal Commissioner to cancel the permission to erect a building on certain grounds, reads as under: Section 258 If at any time after permission to proceed with any building or work has been given under the rules, the Commissioner is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Section 253 or 254 of or further information if any, furnished, he may cancel such permission, and any work done thereunder shall be deemed to have been done without his permission. Section 478 of the Act, which deals with unauthorised works, reads as under: Section 478 (1) If any work or thing requiring the written permission of the Commissioner under any provision of this Act or any rule, regulation or bye-law is done by any person without obtaining such written permission or if such written permission is subsequently suspended or revoked for any reason by the Commissioner, such work or thing shall be deemed to be unauthorised and, subject to any other provision of this Act, the Commissioner may at any time, by written notice, require that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cially and the decision of the authority is a quasi judicial act and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi judicial act provided the authority is required by the statute to act judicially. The present case falls within the second category or class of cases indicated by Das J. 14. It is clear on a bare reading of Section 258 of the Act that it does not expressly cast a duty upon the Municipal Commissioner to act judicially. However, it is now well settled that the duty to act judicially is not required to be super-added or superimposed by the statute. Such a duty may be inferred from or spelt out of the nature of the power conferred upon the authority. If the nature of the power is such that it empowers the authority to determine questions which affect an individual prejudicially, judicial character of duty has to be inferred from the very nature of power conferred upon the authority. We will, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 478 of the Act provides for the consequences which ensue in a case where any work required to be done with the written permission of the Municipal Commissioner under any provisions of the Act is done without obtaining such permission or a case where such permission is subsequently suspended or revoked for any reason by the Municipal Commissioner. The section provides that the Commissioner may, by written notice, in such cases require that such unauthorised construction be removed, pulled down or undone and where the requisition contained in the notice is not carried out, the section authorises the Municipal Commissioner to remove or undo the unauthorised structure at the expenses of the owner. 16. It is thus clear that the exercise of the power under Section 258 of the Act is bound to prejudicially affect any person against whom an action under the said section is taken. There is hardly any doubt that the cancellation of the permission would have serious repercussions on an individual's right to property and is bound to affect his interest adversely. Moreover, the cancellation of the permission by the Municipal Commissioner in exercise of his power under Section 258 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nguage employed by the Legislature as well as of the consequences which ensue from an order under Section 258 of the Act, it is clear that the power conferred upon the Municipal Commissioner under Section 258 of the Act is a quasi judicial power and before cancelling a permission in exercise of the power conferred upon him under the said section, the Municipal Commissioner should consider the question arising before him in a judicial spirit. In exercising the power, the Municipal Commissioner must act justly and fairly and not arbitrarily or capriciously; he must exercise the power in consonance with principles of natural justice. We are also of the opinion that when the Municipal Commissioner proposes to take an action under the said section, the minimum compliance with the rules of natural justice that is required of him would be that: (i) the particulars of the alleged material misrepresentation or fraudulent statement attributed to the person likely to be affected by the order should be clearly and precisely communicated to him; (ii) the person likely to be affected should be communicated the material on the basis of which the material misrepresentation or fraudulent statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affects a person's right to property Vide decision of the Supreme Court in D.F.O. South Kheri v. Ram Sanehi Singh Civil Appeal No. 1638 of 1969 decided on 15th January, 1970. As we have stated earlier, an order made under Section 258 of the Act involves serious civil consequences prejudicially affecting a citizen's right to property. In any view of the matter, therefore, the Municipal Commissioner exercising power under Section 258 of the Act is bound to comply with the principles of natural justice and to afford a reasonable opportunity of representing his case in the manner indicated hereinabove to a person likely to be prejudicially affected by an order proposed to be made by him. 20. Since the impugned order is admittedly made in the instant case, without complying with these essential principles of natural justice, the petitioners are entitled to succeed and the order is liable to be quashed and set aside. 21. Counsel for the respondents, however, contended that even if we hold that the power under Section 258 of the Act can be exercised by the Municipal Commissioner only in consonance with rules of natural justice, we must hold on the facts of this case that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet another and a more fundamental reason for not accepting the submission made before us. The consideration whether miscarriage of justice has, in fact, resulted or not is wholly irrelevant in judging the validity of an order passed in violation of the rules of natural justice. As pointed out by Bhagwati C.J. in the decision dated 23rd, 24th and 25th June, 1969, Original Jurisdiction Appeals No. 1 and 2 of 1969 : East India Co. v. Official Liquidator Raj Ratna Mills Ltd. XI G.L.R. 457. The audi alteram partem rule is indeed so vital and fundamental to the basic concept of justice that where it is infringed, the Courts do not pause to inquire whether there has been any miscarriage of justice as a result of its breach. The breach of natural justice is itself miscarriage of justice which entitles the applicant to succeed. It may also be noted that an argument very much similar to the one that is advanced before us was urged before the Supreme Court in the Board of High School and Intermediate Education, U.P. and Ors. v. Kumari Chatra Srivastava and Ors. [1970]3SCR266 , and while negativing the argument it was observed that: Whether a duty arises in a particular case to issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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