The Director of Handlooms and Textiles and Others vs K. Venkatesan and Others

Sathiadev, J.—W.A. No. 1973 of 1987. This appeal is preferred against the order passed by the learned single Judge of this Court in W.P.

No. 8833 of 1987 on 7th September, 1987, allowing the Writ Petition on the day when it came up for admission and without ordering notice to

issue to any of the impleaded respondents, and therefore, without hearing the affected parties.

W.P. No. 8833 of 1986 was filed by a ''A'' Class Member of the third respondent Society (ranking of parties as in Writ Petition). He states that

the Society was promoted and incorporated with 54 members on 22.5.1971 to uplift the conditions of the weavers in the area of its operation. It

has a complement of 648 ''A'' Class Members and 244 ''B'' Class Members in all 992, who have subscribed various amounts as share capital to

the total tune of about Rs. 6,97,500. It was registered with the second respondent and started functioning with a nominated Board of Directors.

The last nomination was made for the period upto 8.10.1987. Even though it had been in existence for the past 16 years, no election was

conducted for the Committee and the Board, because of political motivation of the first respondent to nominate members belonging to Aiadmk

party. As the first two respondents are sure that the members of the third respondent Society will not allow persons belonging to Aiadmk party to

be elected; holding of election had been prevented by resorting to one device or other. As per Chapter V of Tamil Nadu Co-operative Societies

Rules, 1963, the first respondents are under legal duty to conduct elections to the Committee of Management, and under Rule 36(1), it shall be

held within 90 days immediately preceding the date of expiry of the term of existing Committee, which expired on 8.10.1987; and as no steps had

been taken to conduct the elections, the Writ Petition was filed to issue a writ of Mandamus to respondents 1 to 3 to conduct election to the

Committee of Management of third respondent society.

The impleaded three respondents are the Director and Assistant Director of Handlooms and Textiles, and Kancheepuram Arignar Anna Silk

Handloom Weavers Co-operative Production and Sales Society Limited represented by Secretary, Kancheepuram.

This Writ petition came up for admission on 7.9.1987. Learned Counsel for the petitioner was heard. After extracting the prayer in the Writ

Petition, without assigning any reason or referring to any of the relevant provisions, the writ petition was straightaway ordered by stating as follows:

Respondents 1 to 3 are hereby directed to conduct the election to the Committee of the third respondent-Society on or before 31st December,

1987, in accordance with law. The Writ Petition is ordered accordingly.

The usual practice of admitting the Writ Petition and ordering notice was not done. Even the Government-Advocate, who could appear for

respondents 1 and 2 was not heard. No notice was issued to any of the respondents. It is on allowing the Writ Petition straightaway when it comes

up for admission and that too without hearing the affected parties; that has resulted in the first two respondents filing this writ appeal claiming that in

respect of the third respondent Society, as early as 26.8.1987, G.O. Ms. No. 411, Handlooms, Textiles and Khadi (D) Department, dt.

26.8.1987 had been issued u/s 111(b) of Tamil Nadu Co-operative Societies Act, 1961 thereby authorising the Government and the Registrar to

nominate all or any of the members of the Committee for such period not exceeding one year on and from 8.10.1987 or till election is held under

T.N. Act 30 of 1983, on its coming into force, whichever is earlier; and therefore, the direction of the learned Judge to conduct election stipulating

a time limit is opposed to the said G.O. and that the power conferred u/s l11(b) to issue such a G.O. has been upheld by a Division Bench of this

Court in W.A. No. 652 of 1984 (judgment, dt. 19.11.1986).

One A. Selvaraj, a member of the Society has filed C.M.P. No. 164 of 1988 to implead himself in the writ appeal stating that in regard to the

very same Society, W.P. No. 10010 of 1986 was filed by another member for identical relief and it was dismissed after hearing the Additional

Government Pleader, and on following the other decision of the Division Bench in W.A. No. 1047 of 1986, dt.-2.12.1986. The learned Judge had

also dismissed 12736 of 1985 on 6.12.1985 on the ground that any notification issued u/s lll(a) would empower the Government to nominate

members to the Committee of Management. Hence, he is a necessary party to this appeal and as this petition was not objected to, it was ordered.

The vital point is whether without issue of notice to affected parties and hearing them, can this Court straightaway allow a writ petition which

comes up for admission?

Mr. Manivannan, learned Counsel for the impleaded party, submits that the observance of principles of natural justice is not confined to quasi-

Judicial Tribunals, but would with equal force apply to Courts. He would further add: that if a violation of principles of natural justice is committed

at the first stage, it cannot be cured at the appellate stage; and that denial of justice itself is a prejudice for setting aside an order of this nature. He

concludes by claiming that denial of fair trial at the first instance would result in deprivation of curing the defect in appeal.

Mr. N.G. Ganapathi, learned Counsel for the Writ Petitioner, is in a helpless position, and unable to rely upon a single authority to support the

order, which is in favour of the writ petitioner.

Mr. C. Chinnaswami, learned Special Government Pleader, states that, if only notice had been ordered, the first two respondents would have

placed before court the decisions of the Division Bench, which would have resulted in the Writ Petition being dismissed.

Mr. Manivannan, learned Counsel for the impleaded party, has relied upon the following decisions to show as to how an order passed without

opportunity to aggrieved persons would be vitiated, and which cannot be cured even in an appeal, and the proper course would be to enable the

aggrieved party to have the opportunity before the same forum which had unreasonably denied it.

The decision in U.P. State v. Mohd. Nooh 1958 M.L.J. (Cri.) 217 : 1958 S.C.J. 242 : ILR (1957)2 All. 422 : AIR 1958 S.C. 86 is to the

following effect:

On the authorities referred to above it appears to us that there may conceivably be cases and the instant case is in point-where the error,

irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive

that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior Court or

tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a

manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the Superior Court''s sense of fair

play, the Superior Court may, we think, quite properly exercise its power to issue the prerogative writ of Certiorari to correct the error of the

Court or tribunal of first instance, even if an appeal to another inferior Court of tribunal was available and recourse was not had to it or if recourse

was had to it, it confirmed what ex facie was a nullity for reasons aforementioned....

In Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, , it was held that, if an Act prescribes a procedure which is

impermissible under the Constitution, then it will have to be struck down. Hence, it is contended that if the procedure adopted by a Court does not

conform to the norms of justice, and fair play; then it would be a negation of rule of law.

Then reliance is placed on Swadeshi Cotton Mills Vs. Union of India (UOI), , in which it was held:

... ''Natural Justice'' was considered as ''that part of natural law which relates to the administration of Justice''. Rules of natural justice are not

embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules.

But two fundamental maxims of natural justice have now become deeply and indelibly ingrained in the common consciousness of mankind, as

preeminently necessary to ensure that the law is applied impartially, objectively and fairly. Described in the form of Latin tags these two principles

are: (i) Audi Alteram Partem and (ii) Nemo Judex In Re Sua....

Learned Judges have referred to the decision in Mohinder Singh Gill''s Case in which it was observed/

Subject to certain necessary limitations natural justice is now a brooding omnipresence although varying in its play. Its essence is good conscience

in a given situation; nothing more but nothing less.

It was then held as follows:

The maxim Audi Alteram Partem has many facts. Two of them are: (a) notice of the case to be met; and (b) opportunity to explain. This rule is

universally respected and duty to afford a fair hearing in Lord Loreburn''s oft-quoted language is ""... a duty lying upon every one who decides

something"", in the exercise of legal power. The rule cannot be sacrificed at the alter of administrative convenience or celerity; for ''convenience and

justice''-as Lord Atkin felicitiously put it-''are often not on speaking terms (General Medical Council) v. Spackman 1943 A.C. 62.... Audi Alteram

Partem rule may be disregarded in an emergent situation where immediate action brooks no delay to prevent some imminent danger or injury or

hazard to paramount public interests....

Again in making further reference to illuminating observations therein, the following extract was made.

... The procedural precondition or fair hearing, however minimal, even post-decisional, has relevance to administrative and judicial gentlemanliness.

Relevant passage by Lord Reid is also extracted. It being....

... Even where the decision has to be reached by a body acting judicially, there must be a balance between the need for expedition and the need to

give full opportunity to the defendant to see material against him....

In S.L. Kapoor Vs. Jagmohan and Others, , after extracting the undermentioned passage in R. v. Thames Magistrates'' Court, Ex.P. Polemis

(1974) 1 W.L.R. 1371:

It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not

seen to be done, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say; Well, even if the case had been

properly conducted, the result would have been the same''. That is mixing up doing justice with seeing that justice is done (per Lord Widgery C.J.

at p. 1375).

It has been held as follows:

In our view the principles of natural justice know of no exclusionary rule dependent on what it would have made any difference if natural justice

had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of

natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced....

A catena of decisions have been rendered highlighting the cardinal duty in extending the reasonable opportunity before a decision is taken

prejudicial to the interests of a party.

The nature of relief prayed for in the writ petition is not one which if not granted, would put the petitioner in imminent danger or injury or hazard

to paramount public interests. It is not a case in which holding of elections had been notified to be held by the time and date already fixed. The

order nowhere hints out the competing claims of hurry and hearing. Rather, no reason is found in the order, even for granting the relief. It is not an

order where by following the earlier binding decisions of Courts, the petitioner gets allowed. Even under such circumstances, it is done by a Court

only after notice to respondents or by their Standing Counsel taking notice in Court. Allowing a Writ petition straightaway when it comes up for

admission is therefore an improper disposal, even though the power exercisable is under Article 226 of the Constitution of India. The principles of

fair play and justice are not excluded, when this power is invoked. It has become necessary to elaborate upon this point because this is not the first

case wherein a writ petition without issue of notice to respondents and without hearing them, gets ordered as it comes up for admission. There are

instances in which writ petitions are dismissed in admission stage, but directions are issued for compliance, which virtually result in petitioner getting

the desired relief. This sort of directions or conditions imposed in admission stage, but technically concluding the order as dismissed or ordered

accordingly, would not also be proper or permissible, because to the extent relief is extended by such manner of disposal it leads to respondents

without notice, being compelled to do certain acts, about which they have not been heard at all.

Yet another infirmity is that, it is devoid of any reason, which is the backbone for judicial findings. It may be that Courts are overburdened with

a large number of cases being filed, and expedition may be a desired object to be achieved; but this manner of ordering a writ petition cannot be

upheld.

It has been pointed out by respondents 1 to 3 and impleaded party that there are Division Bench decisions upholding the exercise of powers in

similar matters u/s lll(b) of the Act, and an earlier writ petition asking for similar relief in respect of the same Society for holding the election had

been dismissed by this Court, and if only the proper procedure of issue of notice to respondents had been adhered to; these factors would have

been placed before Court, and which would have resulted in dismissal of the writ petition.

In the light of the decisions above referred to, since the fundamental requirements have not been complied with; the order in the writ petition is

set aside and the writ petition is to be posted for ordering notice.

It is, therefore, held that under no circumstances, a writ petition filed under Article 226 of the Constitution could be straightaway allowed

without ordering notice to affected respondents or without hearing their counsel who may on instructions participate in the proceedings by taking

notice for their clients. Equally issuing directions or imposing conditions while dismissing writ petitions in admission stage cannot be done, without

hearing respondents who are to abide by the conditions. Exercise of constitutional power in this fashion being inappropriate, this Court is put to the

unpleasant task of amplifying and enlightening as to what ought not to have been done, and hence remit thereafter, so that the proper procedure

required by law has to be followed, before the writ petition is disposed of Any decision of Court without adherence to proper procedure being

illegal, though the respondents are before this Court, of whom two are appellants, it had still necessitated in reviving the Writ Petition for adherence

to established procedure.

Hence, this Writ appeal is allowed to this effect. No costs.

W.A. No. 87 of 1988:

The order passed in W.P. No. 8833 of 1987 against which W.A. No. 1973 of 1987 had been filed, is challenged in this writ appeal also by

two persons as third parties who claim to be interested in the effective functioning of the Society. Since they put forth the same points as taken by

the State of Tamil Nadu in W.A. No. 1973 of 1987 this writ appeal is allowed, and they will be heard, as respondents in the writ petition, as and

when it comes up for disposal. No costs. As for announcing results of election, it shall continue to be stayed until further orders are passed in the

writ petition.