SPEAKING ORDER-AN ATTRIBUTE OF NATURAL JUSTICE?

(M. P. R. Nair, Bar-at-Law)

In a recent case K. Karaipak & Ors. etc, v. Union of India & Ors reported in (1969) S.C.W.R. I 1122 the Supreme Court had occasion to con­sider the trend in recent years of the development of the principles of natural justice. In this case, the petitioners who were gazetted Officers serving in the Forest Department of the State of Jammu and Kashmir sought to quash a notifi­cation issued by the government of India as violative of Arts. 14 and 16 of the Constitution besides being violative of the principles of natural justice. In the Selection Board constituted for the purpose of selection of officers to the Indian Forest Service, Mr. Naqishbund, the acting Chief Conservator of Forests in Jammu and Kashmir was one of the members. Mr. Naqishbund himself was a candidate seeking to be selected to the All India Forest Service. No doubt, in the fitness of things, he did not participate in the deliberations of the committee when his name was considered. The selections in question were said to have been made solely on the records of the Officers and Mr. Naqishbund admittedly participated in the deliberations of the selection board when the claims of his rivals were considered. He was also party to the preparation of the selected candidates in order of preference wherein his name was shown as No. 1 in the list. One of the questions that the Supreme Court had to consider was whether the selections made by the Selection Board were to be set aside on the ground of violation of natural justice. In holding that in as much as Mr. Naqishbund was party to the preparation of the selection list in which his name was shown as No. 1, Mr. Naquishbund “was undoubtedly a judge in his own cause, a circumstance which is abhorrent to our concept of justice”, the Supreme Court analysed the concept of natural justice and the change that the law has undergone in recent years. To the two well-known principles of natural justice namely, (I) that no one shall be a judge in his own cause and (2) that no decision shall be given against a party without affording him a reasonable hearing, a third rule was added, namely, that quasi-judicial enquiries must be held in good faith without bias and not arbitrarily or unreasonably. The observation of the Supreme Court at para 19 of the Report strikes significant.

“The aim of the rules of natural justice is to secure justice or to put it negative^ to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supple­ment it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely; (1) no one shall be a judge in his own cause (Hema debat case index propria casual) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith without bias and not arbitrarily or unreasonably. But in the course of years many mofe subsidiary rules came to be added to be rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to sea why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrativ_e enquiries from quasi-judicial enquiries. Enquiries which were considered administrative atone timo are now being considered as quasi-judicial in character. Arriving at a just decision, is the aim of both, quasi-judicial enquiries, as, well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala and, ors. (1568) II S. C. W.R. 117 the rules, of natural justice are not embodied rules. What particular rule of natural justice should apply to given case must depend to, a great extent on the facts and circumstances of that case the, frame-work, of the law under which the enquiry is held and the constitution of the Tribunal or body of person* appointed for that purpose. Whenever a complaint is made before a court that some prin­ciple of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case”,

If, as stated by the Supreme Court, the object of the rules, of natural justice is to prevent miscarriage of justice, the third rule as enunciated by the Supreme Court assumes considerable significance. Under this rule, it is neces­sary for the aggrieved party to be satisfied that quasi-judicial or administrative enquiry has been conducted in good faith, without bias, and not arbitrarily or unreasonably. This doctrine necessarily, casts a duty on a quasi-judicial or administrative authority empowered by their acts to affect the rights of citizens, and to pass orders which visit civil consequences upon citizens to assign reasons for such orders. It has, been held in a number of decisions, and the law is now well settled, that even administrative authorities have a duty to act judicially in cases where they affect the rights of citizens and this duty necessarily implies that the authority, has to advert to the materials on record and arrive at a conclusion on the basis, of the evidence and has to record the reasons therefore. If no reasons, are recorded for the conclusion, it will not be possible to maintain whether the: authority has adverted to the materials on record, whether there has been an application of the mind on the materials on record or whether the authority has been influenced by extraneous considerations. In order, therefore, to satisfy that the authority under the 3rd rule of the principles of natural justice-has acted neither unreasonably nor arbitrarily it is very essential that reasons have to be recorded for the conclusions for, if “one does not know the facts, on which the conclusion against one is, drawn, it would be impossible to challenge it or lead, rebuttal.”

The question arises if the ultimate order passed at any rate by quasi-judicial authority should be speaking order. The answer to this question ought to be in the affirmative. The further question would be whether insistence upon, a speaking order is a requirement of the principles of natural justice. It cannot be disputed, and it is now fairly eertain, that the rules of natural justice insist upon, a conduct on the part of a quasi-judicial authority to act in a manner free from arbitrariness and unreasonableness. If that be so, giving of reasons is-certainly a requirement and an attribute: of the principles of natural justice.

In a recent case decided by the Allahabad High Court reported in 1969 ALJ 174, the learned Judge on an analysis of the case law on the subject just relevant for the purpose observed as follows:.

“Neither, on, principles nor on authority could it be said that the principles of natural justice require that the ultimate order must, be a speaking one.”

The facts of this case may be noted. The plaintiffs in this case claimed to be Indian citizens who temporarily migrated, to Pakistan on account of certain chaotic conditions in Aligarh. They returned to India with; a. Pakistani Pass­port. On expiry of the period of visa, the authorities in India sought to deport the plaintiffs to Pakistan against which action the plaintiffs filed a suit and obtained an injunction. The suit was decreed on the finding that till the Central Government determined the citizenship of the plaintiffs under the Citizenship Act» the defendants would not deport the plaintiffs to Pakistan. The Central Government eventually passed orders declaring that the plaintiffs had volunt­arily acquired the citizenship of Pakistan. The plaintiffs thereupon filed a suit for a declaration that this order was illegal and for an injunction restraining the* defendants from deporting the plaintiffs out of India. One of the contentions though not raised by the plaintiffs in the courts below but argued before the High Court was that the order requiring them to leave the country was passed in violation of principles of natural justice in as much as the order passed against the plaintiffs was not a speaking order.

This case was ultimately decided on other points since the plaintiffs did not urge this contention either in the pleadings or before any of the courts below. The learned judge, however, came to the conclusion that absence of reasons in a quasi-judicial order does not automatically void the order. However the’ learned judge added that

“A quasi-judicial order which does not stats reasons may be defective, improper’ or may also be valid, depending on facts of each case. In this situation, it will  be difficult to say that such an order would be void ab initio Or a nullity in law. It would, in my’ opinion, suffer from a material irregularity and to be a voidable, and not a void order,’“

The learned judge was further pleased to add that

‘If the order is treated as voidable, then it has to be voided on that ground”.

It will, therefore, be seen that the Allahabad High Court was of opinion, though the High Court did not decide the case on this point, that a quasi-judicial order which does not state reasons would suffer from a material irregularity and to be a voidable order. The effect is the same and the only inferences from the judgment read as a whole are(1) that a quasi-judicial authority ha& to record reasons and (2) that an order which does not comply with this is a voidable order, suffering from a material irregularity and to be voided on this’’ ground. It is therefore, submitted that this decision cannot be taken as an auth­ority for the proposition that the principles of natural justice do not require assignment of reasons nor of the proposition that an order which does- not state’ reasons is not a void order.

A recent decision of the Kerala High Court reported in1959 KLT 230’ (Ibrahim Kunju v. State of Kerala & Ors) throws considerable light on this point. In this case, the affairs of a cooperative society, committed to the management of a board was subjected to a preliminary scrutiny by the Deputy Registrar and upon his report the Joint Registrar issued orders- superseding the Board of Management. Of course, a notice was issued to the Board and an explanation obtained. The board submitted an appeal to the government against the order. This appeal was also dismissed. The order of the Joint Registrar superseding the board and the appellate order of the government were challenged before the High Court. One of the grounds of attack was that no reasons were given in support of the order. One other fact may also be noted. On the date on which the appeal was posted for hearing before the Government, the counsel for the appellant applied in writing for an adjournment on reasons of ill-health. The adjournment was refused by the government and the case decided ex parte. The question before the High Court relevant for our purpose was two-foId (1) whether failure to give reasons is fatal to quasi-judicial orders (or administrative orders) which affect rights of citizens, and (2) whether giving of reasons is a requirement of natural justice. The observations of the learned Judge on these points are illuminating’. So far as the 1st point is concerned, namely, whether absence of reasons in quasi-judicial orders (or administrative orders that affect the rights of citizens), normally voids the order, his Lordship after adverting extensively to the case-law on the subject declared that ’failure to give reasons ordinarily voids the order”.

On the second point, namely, whether assigning of reasons is a requirement of natural justice, His Lordship observed as follows:

“Natural justice, I must warn, cannot be perverted into anything unnatural or unjust and cannot, therefore, be treated as a set of dogmatic prescriptions applicable with­out reference to the circumstances of the case. The question merely is, in all conscience have you been fair in dealing with that man? If you have been arbitrary, absent-minded, unreasonable or unspeaking, you cannot deny that there has been no administrative fair play”

and at paragraph 9 of the report, His Lordship further observed:

“Another point has been taken that the refusal of adjournment by the government without assigning reasons was arbitrary and therefore unjust. Giving reasons for orders is certainly a requirement of natural justice. But this does not mean that every incidental or interlocutory or other similar order must contain elaborate reasons.”

There was no doubt in the mind of h is Lordship that giving of reasons is a requirement of the principles of natural justice Indeed, this conclusion of his Lordship is justified, nay fortified by the observations contained in a Division Bench decision of the Kerala High Court reported in 1950 K.LT t304. (Josephv. Supdt,of Post Offices). At para.5 of the report, the following passage appears.

“.........even where there be no express provisions and administrative authorities be discharging quasi-judicial functions, judicial pronouncements insist on reasons being given for the order”

and at page 1308 of the report it has been further observed that

“where the order by administrative authorities be quasi-judicial, it must be ‘speaking order’ and absence of reasons in it would be fatal to its legality. The complaint by the petitioner is that he was suspended in 1952 and had not been allowed to do any work thereafter; that the criminal complaint against him has been found not to be established; that he has been thereafter dismissed for unsatisfactory conduct; but he does not know what that conduct is, and is not, from the record, in a position to exercise properly the right of appeal, which the Rules give him”.

If, therefore, assigning of reasons has by judicial pronouncements been insisted upon in regard to administrative orders, there is perhaps no escape from the conclusion that the requirement to assign reasons for quasi judicial orders can­not be dispensed with under any circumstances.

It is significant to note in this context that the Donoughmore Committe on natural justice, in its report on Ministerial Powers added two more principles to the two age-old principles of natural justice, namely (a) A party has a right to know the reason for a decision affecting him, be it judicial, quasi-judicial or administrative;

(b) when a decision is arrived at after conducting an enquiry, the report of such officer must be made available to the parties concerned The opinion of the Law Commission (Reform of Judicial Administration, Vol. 11) is not different either.

‘In the case of administrative decision provision should be made that they should be accompanied by reasons.”

It may not be necessary to refer to other decisions or authorities to substantiate this point. If, as noted by the Supreme Court, a 3rd rule of Natural Justice has been engrafted to the two well-known principles requiring quasi-judicial authority not to act arbitrarily or unreasonably, it goes without saying that reasons for the conclusions alone would reveal whether an authority has acted unreasonably or arbitrarily. Without knowing the reasons as to why and under what circumstances an adverse conclusion has been drawn against a citizen, with civil consequences visiting upon him, it is impossible to say or maintain that arbitrariness or unreasonableness cannot be suspected of the orders of the authority. Administrative fair-play demands assigning of reasons for the orders and quasi-judicial obligation involves giving reasons for orders. Both are subject to the dominion of natural justice. The irresistible conclusion, therefore, is that natural justice requires giving reasons for orders and the 3rd rule as enunciated by the Supreme Court in the decision referred to above, unambiguously states so, if one “lifts the veil” or strips it of the legal jargon.

Section 12 of the Kerala Buildings (Lease and Rent Control) Act

(V.K. Sathyavan Nair, Advocate, Kottayam) 

S.12 of Act 2 of 1965 creates an anomolous situation. The questions posed for discussion are:-(1) What are the legal consequences which follow an order under sub-S.3 of S.12 of the Kerala Buildings (Lease & Rent Control) Act? (ii) Is the order final and executable under S.14 of that Act? (iii) Do the provisions of S.11 apply to cases covered by an order under S.12 (3)?

S.12 confers remedial right on the land lord who has applied for eviction under S.11 as it provides for contingencies arising out of failure on the part of the tenant to deposit rent during the pendency of proceedings for eviction. S.12 is widely worded and applies to any petition for eviction under S.11 irres­pective of the grounds on which the eviction is sought for. Suppose the land­lord files an application for eviction under Sec. 11 (3) on the ground that he bona fide needs the building. On the date of the application there may not be any rent in arrears. Nevertheless the tenant has to pay or deposit any rent which may subsequently become due in respect of the building as is plain from a reading of S.12.

“No tenant against whom an application for eviction has been made by a landlord under S. 11 shall be entitled to contest the application...unless...all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit and continues to pay or to deposit any rent which may subsequently become due.”

It is clear that the failure on the part of the tenant to deposit rent in accordance with S.12 (1) ends in forfeiture of his rights to contest the application. A tenant who defaults to pay admitted arrears of rent cannot also avail of the protections secured by the other provisions. Sub-S. 2 of S.12 provides for fixing a day by the court ‘for depositing the amount. The time for depositing arrears of rent should not be less than four weeks from the date of the order and in the case of rent that accrues subsequently two weeks from the date on which the rent becomes due. Thus law shows its indulgence towards the tenants and gives him a reasonable opportunity to protect his rights. But if the order of the court fixing the day for deposit is not complied with, the legal consequence, namely the forfeiture of the rights of the tenant to contest the application imminently follows. According to sub-S. 3 of S.2 the Rent Control Court has to make an order directing the tenant to put the landlord in possession of the building stopping all further proceedings unless the tenant shows sufficient cause to the contrary. Virtually, the court overrules all the contentions of the tenant and passes an order for eviction. Now the difficulty arises. Can the above order be deemed to be an order under S.11 of the Act. The argument that could be advanced is that S.11 is exhaustive of the grounds of eviction and an application for eviction will lie only under S.11. An order for eviction can be*passed only under S.11. Therefore, whenever an order is passed under sub-S.3 of S.12, it is to be deemed to been order under S.11 and automatically the provisions of S.11 are attracted and the tenant can avail of the benefits again. Thus a tenant against whom an order of eviction is passed under subsection 3 of S.12 is entitled to deposit arrears of rent, interest and cost within one month from the date of the order. But that protection is not available if an order under S.12 (3) is held to be distinct from an order Sec.11. Are those orders distinct and separate?

However, a Division Bench of our High Court has categorically stated- 1963 KLT 688-that “Ss.11 and 12 of the Act are not dependant on each other. They provide for different contingencies though the consequence of the non­compliance of the mandates of either section is eviction. It must then follow that an order for eviction passed under S.12(3) is not amenable to correction under S.11 (2) (b) which relates to orders of eviction passed under that sub­section, ie. S.11(2) only.” Therefore it is clear that the position is that an . order under S.12(3) is conclusive and final. A tenant against whom an order is passed under S.12(3) is not entitled to deposit the amount and get the order vacated under S.11 (2)(c).

The legality of an order under S. 12 (3) was considered in 1964 K.LT. 50 9. There was a specific order by the court to deposit arrears of rent accrued during the pendency of the proceedings. It was not deposited in full. Eviction was ordered under Sec. 12 of the Act. The tenant applied for issuance of Writ of certiorari to quash the order. The Division Bench held that when a court has passed an order directing a party before it to do a particular thing, in default of which a certain statutor y consequence is to follow, if the party is to be relieved of the consequences of a non-compliance of that order he has to make a specific motion therefor showing sufficient cause for his non-compliance of the order and making the appropriate prayer therein; otherwise the order would work itself out (in this case order under S.12(2)) and the default to comply with it will bring the appointed consequences on the tenant. The court refused to interfere with the impugned order. The above rulings clearly show that once the Rent Control Court passes an order under sub-S. 3 of S. 12 for non-compliance of an order under sub-S.2 of that Section, the tenant loses all his rights and protection8 conferred on him by sub-section (2) and similar provisions of S.11.

But the curious thing to be noted is that an order under S.12(3) is not mentioned in S. 14 which clearly enumerates the executable orders. So the question is whether an order under S.12 (3), though it is perfectly legal, is executable under S.14? Or can it be deemed as an order under S. 11 for purposes of execution. If the answer is in the affirmative, immediately it follows that the protection given by S.11(2)(b) is available to that tenant. If an order under S.12 (3) is deemed to be an order under S. 11 for purposes of execution it may bring violence to the principle laid down in 1963 KLT. 688. Applying the rules of justice and common sense as is done in the case of an order under clause 9 of TC. Buildings (Lease & Rent Control) Order 1950 holding it to be an execut­able order under S. 14 of Kerala Act XVI of 1959, vide 1963 KLT. 308, it is to be said without any hesitation that an order under S. 12 (3) is executable. But the Act does not provide for it. The anomaly can be remedied only by necessary amendments as long as the legal position is taken to be concluded by the decisions of the Division, Bench in 1963 KLT. 688 and 1964 KLT. 509. The inhibitions contained in S. 12 (S. 12 was first introduced in The Rent Control Ordinance of 1959) lead to hardship as the tenants are deprived of their primary right to contest for the only fault of having failed to deposit the arrears of rent within a short time specified by the Court. It is also to be remembered that the intention of the legislature is to confer relief on tenants against unreasonable evictions.