the learned senior counsel appearing for the 10th Respondent is
that the objection regarding personal bias cannot be entertained in
this Petition since the doctrine of necessity will immediately come
into play. He relied upon a decision of the Apex Court in the case
of State of Uttar Pradesh v. Sheo Shanker Lal Srivastava & Ors.(2006) 3 SCC 276
in support of this contention. He submitted that on the date on
which the cases were placed before the Regulatory Authority,
except Ms. Zutshi and Mr. Sodal, there was no one who could have
heard the cases and, therefore, the doctrine of necessity
automatically operates. His submission is that when the doctrine of
necessity is applicable, there is no requirement of the compliance
with the principles of natural justice.
Thus, what is held by the Apex Court in the aforesaid
decisions is that the presence of direct pecuniary interest
irrespective of its extent operates as a complete disqualification to
adjudicate a dispute. The complete disqualification operates
irrespective of the fact that the pecuniary interest may be very
small. In such a case, the issue of waiver of objection regarding
bias will not arise at all as the presence of pecuniary bias prevents
the Judge from taking up the case in which he has pecuniary
interest. Therefore, any direct financial interest operates as a
complete bar which prohibits a person exercising even quasi
judicial powers from participating in the process of adjudication.
Hence, the plea of waiver is not available in such cases. As stated
earlier, this is a case where the pecuniary and proximate interest in
the subject matter of the case is admitted by Shri Sodal. There is in
our view a distinction to be drawn between a personal bias, one
that may be waived, and a pecuniary bias which stands on a wholly
different footing. In the first place, to be invoked waiver requires
that a disclosure be made of the possibly conflicting interest. It is
when that interest is made known that a party can waive it. But this
can only apply in the case of a personal bias such a relationship or
a friendship. A pecuniary bias stands on another footing altogether.
On the principles enunciated in Mohapatra’s case, a direct,
proximate and existing pecuniary bias can never be waived. It is to
be noted that in Mohapatra’s case, the Apex Court held that the
existence of a pecuniary interest was a disqualification and that this
disqualification did not depend on the amount of the pecuniary
interest. The Apex Court also rejected the invocation of the
doctrine of necessity in such a case by holding that nothing
prevented the government in that case from reconstituting the
committee in question.
The second argument canvassed before the Court is that
principles of natural justice would not apply when there is a
necessity. The said submission is based on the decision of the Apex
Court in the case of State of Uttar Pradesh v. v. Sheo Shanker Lal
Srivastava & Ors. (supra). Paragraph 16 of the said decision deals
with doctrine of necessity.
“16. Referring to the doctrine of
necessity, Sir William Wade in his
Administrative Law stated:
‘ But there are many cases where no
substitution is possible, since no one else
is empowered to act. Natural justice then
has to give way to necessity; for otherwise
there is no means of deciding and them
machinery of justice or administration will
break down.’
It was further stated:
‘In administrative cases the same exigency
may arise. Where the statute empowers a
particular minister or official to act, he
will usually be the one and only person who
can do so. There is then no way of escaping
the responsibility, even if he is
personally interested. Transfer of
responsibility is, indeed, a recognised
type of ultra vires. In one case it was
unsuccessfully argued that the only
minister competent to confirm a compulsory
purchase order for land for an airport had
disqualified himself by showing bias and
that the local authority could only apply
for a local Act of Parliament.”
(Emphasis added)
22. In the present case, the specific stand of the State
Government is that two members out of the three could have
validly conducted the proceedings of the Regulatory Authority. We
may note here that though the Chairperson was not a part of the
adjudicatory procees while passing the impugned order dated 26th
October 2015, when the Review Petitions were heard, he was very
much a part of the adjudicatory process. The submission of the
learned Government Pleader is supported by the said Regulations
and in particular clause 3 of Regulation 9 which lays down that the
quorum of meetings of the Regulatory Authority shall be two-thirds
of the full strength of the Authority (the Chairperson and two
members). Therefore, even if Mr. S. V. Sodal had recused himself,
the cases could have been heard by the Chairperson and the other
member of the Regulatory Authority. Therefore, the doctrine of
necessity sought to be invoked will not apply in the present case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11426 OF 2015
Suresh Ramchandra Palande,
Versus
The Government of Maharashtra,
CORAM: A. S. OKA & G.S. PATEL, JJ.
DATED: 3rd December 2015
Citation:2016(2) MHLJ918
1. Considering the extreme urgency involved in these Petitions,
the same are forthwith taken up for final disposal. Rule. The
learned counsel representing the concerned Respondents waive
service. In these Petitions, except Writ Petition No. 11721 of 2015,
an exception has been taken to the order dated 26th October 2015
passed by the Maharashtra Water Resources Regulatory Authority
(for short, “the Regulatory Authority”). The Regulatory Authority
has been established under Section 3 of the Maharashtra Water
Resources Regulatory Authority Act,2005 (for short, “the said Act
of 2005”). In some of the Petitions, the challenge is also to the
order passed by the Regulatory Authority on Petitions seeking
review of the order dated 26th October 2015.
2. The proceedings before the Regulatory Authority were
initiated on the basis of applications made by one Mr. Bharat
Tukaram Bhalke (the 10th Respondent in Writ Petition No. 11426
of 2015) and one Mr. Siddheshwar Dadasaheb Varade (the 11th
Respondent in the same Writ Petition). The application made by
Mr. Bhalke was numbered as Case No. 5 of 2015 and the
application made by Mr. Varade was numbered as Case No. 6 of
2015. In his application, Mr. Bhalke set out the situation in the
Ujjani Reservoir Command in Solapur District.. He stated that the
poor monsoon in the area had led to a drought and that there was
(and is) no drinking water available for farmers and livestock. He
sought directions from the Regulatory Authority for the equitable
distribution of water from dams upstream of the Ujjani Reservoir.
He also sought a direction for release of water from the Ujjani
Reservoir into the Ujjani Left and Right Bank Canals.
3. Mr. Siddheshwar Varade filed Public Interest Litigation No.
144 of 2015. An order was made in the said Public Interest
Litigation on 16th September 2015 by a Division Bench of this
Court. The application made by Mr. Varade was on the basis of the
said order. The prayer in the said application made by Mr. Varade
was for release of water from the Ujjani Dam to the Ujjani Left
Bank Canal and the Ujjani Right Bank Canal. Various directions
were issued by the Regulatory Authority in the impugned order
dated 26th October 2015.
4. The Chairperson of the Regulatory Authority is one Mr.
Buddhiraja. In the present case, the impugned order was passed by
two other members, namely, Ms. Chitkala Zutshi and Mr. S. V.
Sodal. Ms. Chitkala Zutshi is a Member (Expert in the field of
Water Resource Economy) and Mr. S. V. Sodal is a Member
(Expert in the field of Water Resources Engineering). In paragraph
6 of the said order, directions were issued for achieving an
equitable distribution of water as per Section 11(c) of the said Act.
On the basis of observations made in the impugned order, a
decision was taken to release the water from the upstream dams for
the benefit of the Ujjani Reservoir. Considering the main ground of
challenge which is canvassed before this Court, we are not today
referring to the details of the directions issued by the Regulatory
Authority under the impugned order.
5. The Petitioner in Writ Petition No. 11426 of 2014 remained
present before the Regulatory Authority when the Case No. 5 of
2015 and Case No. 6 of 2015 were posted before the Regulatory
Authority and prayed for intervention. The application for
intervention made by him was not entertained by the Regulatory
Authority. The said Petitioner applied for a review of the order
dated 26th October 2015. The Review Petition was placed before
the Regulatory Authority on 17th November 2015 when one Mr.
Suresh Namdeo Gore (the 14th Respondent in Writ Petition No.
11426 of 2015) raised an objection that Mr. Sodal, a member of the
Regulatory Authority, was himself a potential beneficiary of the
water that might come to be released from the Ujjani Dam. Mr.
Sodal was said to personally hold sizeable lands downstream of the
Ujjani Dam, and, in addition, his family members were said to hold
other lands similarly situated. The Roznama of the hearing
conducted on 17th November 2015 maintained by the Regulatory
Authority records that after the said objection was raised by Mr.
Gore, Mr. S. V. Sodal recused himself from the review matter.
6. By an order dated 18th November 2015, the Review
Application filed by the Petitioner in Writ Petition No. 11426 of
2015 was disposed of by the Regulatory Authority by observing
that the matter was sub-judice before this Court. The Regulatory
Authority recorded that it had decided not to hear the Review
Applications in order to observe judicial discipline and judicial
propriety. In Writ Petition No.11426 of 2015, the challenge is to the
orders dated 26th October 2015 and 18th November 2015.
7. Writ Petition No. 11152 of 2015 is filed by Mr. Ravindra
Rajaram Kandhare. Apart from incorporating a challenge to the
said impugned order dated 26th October 2015, there is also a
challenge to the order dated 18th November 2015 passed by the
Regulatory Authority on the application for review made by the
said Petitioner by which the Regulatory Authority declined to
entertain the Review Petition. Similar challenges are made in Writ
Petition No. 11165 of 2015 filed by Mr. Suresh Gore and in Writ
Petition No. 11555 of 2015 filed by Mr. Ashok Pawar. Writ Petition
No. 11721 of 2015 is filed by Shri Bharat Bhalke seeking a Writ of
Mandamus enjoining the Respondents to forthwith implement the
order dated 26th October 2015.
8. The main submission canvassed across the bar by the
learned counsel representing the Petitioners is that Mr. S. V. Sodal,
the Member (Engineering) of the Regulatory Authority, had a
direct and proximate pecuniary interest in the subject matter of
controversy before the Regulatory Authority. It is contended that if
the water from upstream dams is released for the benefit of Ujjani
Dam, as Mr. S. V. Sodal holds substantial agriculturals land in the
benefited zone of Ujjani Dam, he is a direct beneficiary. Moreover,
it was contended that the order dated 17th November 2015 passed
by the Regulatory Authority in the Review Petitions specifically
records that Mr. S. V. Sodal expressed a desire to recuse himself
from the Review Petitions. When the Review Petitions were placed
for hearing on 17th November 2015, Mr. S. V. Sodal recused
himself and the Review Petitions were heard by the Chairman and
the Member (Economy). We must also note here that when these
Petitions were heard yesterday, Mr. S. V. Sodal was personally
present. Clauses 1 to 3 of the order dated 2nd December 2015
passed by this Court read thus:
“1. In the morning session, Shri
S.V.Sodal, the Member (Engineering) of the
respondent No.12 in Writ Petition No.11426
of 2015 who was personally present in the
Court made a statement through his learned
counsel that he will immediately tender
resignation from the post of Member
(Engineering) of the respondent No.12the
Maharashtra Water Resources Regulatory
Authority. The said statement was accepted
as undertaking. The said statement was
made as Shri Sodal accepted before the
Court that his agricultural land will be
benefited by the impugned order dated 26th
October 2015. To enable him to file an
affidavit to that effect, the petition was
kept back till 4.15 p.m today. When the
matter was called out at 4.15 p.m, he
tendered an unaffirmed but signed
affidavit. Clause (2) of the affidavit
reads thus:
“2. I say that I will take
appropriate action for
relinquishing from the post of
Member (Engineering) after
consulting Senior Advocate and as
per provision in MWRRA Act,2005.
Time may be given for the same as
per convenience of Hon’ble Court
or whatever Hon’ble Court deem fit
and proper.”
2. After we pointed out to him that
the statement made in paragraph 2 of the
affidavit will amount to gross contempt
of this Court, he stated that tomorrow he
will tender resignation from the post of
Member (Engineering). He stated that he
will immediately file an affidavit to
that effect.
At 5.15 p.m., the learned counsel
representing the respondent No.12 tenders
affidavit cum undertaking of Shri
S.P.Sodal, the Member (Engineering). The
undertaking in terms of paragraph 2 is
accepted. The affidavit is marked as ‘A2’
for identification. Place this petition
along with connected petitions at 12.30
p.m tomorrow 3rd December 2015.”
9. Hence, Mr. S. V. Sodal accepted before this Court that his
agricultural lands will be benefited by the implementation of
impugned order dated 26th October 2015. Thus, it becomes an
admitted position that Mr. S. V. Sodal had a direct and proximate
pecuniary interest in the subject matter of controversy in Case Nos.
5 of 2015 and 6 of 2015, which were decided by the impugned
order dated 26th October 2015.
10. In view of this admitted position, the submission of the
learned counsel representing the Petitioners in the first four
Petitions is that the impugned order dated 26th October 2015 is
vitiated as Mr. S. V. Sodal could not have heard either of the two
cases. The learned senior counsel representing the 10th Respondent
in Writ Petition No. 11426 of 2015 (Mr. Bharat Tukaram Bhalke)
urged that the objection regarding bias ought to have been raised
before the Regulatory Authority when Case Nos. 5 of 2015 and 6
of 2015 were heard. He urged that the objection regarding bias can
always be waived and in the facts of the case, it was in fact waived.
In support of his contention, he relied upon a decision of the Apex
Court in the case of Manak Lal v Dr. Prem Chand Singhvi &
Ors.1
He also placed reliance on a decision of a Division Bench of
this Court in case of Advani Builders Private Limited & Anr. v.
Slum Rehabilitation Authority & Ors.2
The second contention of
the learned senior counsel appearing for the 10th Respondent is
that the objection regarding personal bias cannot be entertained in
this Petition since the doctrine of necessity will immediately come
into play. He relied upon a decision of the Apex Court in the case
of State of Uttar Pradesh v. Sheo Shanker Lal Srivastava & Ors.3
in support of this contention. He submitted that on the date on
which the cases were placed before the Regulatory Authority,
except Ms. Zutshi and Mr. Sodal, there was no one who could have
heard the cases and, therefore, the doctrine of necessity
automatically operates. His submission is that when the doctrine of
necessity is applicable, there is no requirement of the compliance
with the principles of natural justice.
11. The learned counsel representing Respondent No. 11 (Mr.
Siddeshwar Dadasaheb Varade) invited our attention to the orders
passed in Public Interest Litigation No. 144 of 2015 by a Division
Bench of this Court. Though he stated that his prayer in Case No. 6
1 AIR 1957 SCC 425
2
2013 (7) Bom. C.R. 660
3
(2006) 3 SCC 276
of 2015 was not granted under the impugned order dated 26th
October 2015, his prayer was granted by virtue of the subsequent
order passed by the Division Bench of this Court on 27th October
2015 in Public Interest Litigation No. 144 of 2015. He, therefore,
urged that no interference is called for in Writ Jurisdiction.
12. Mr. Vagyani, learned Government Pleader invited our
attention to the provisions of Section 10 of the said Act. He also
invited our attention to the Maharashtra Water Resources
Regulatory Authority (Conduct of Business) Regulations, 2013 (for
short “the said Regulations”). He urged that in view of the
Regulation 10, out of the three members of the Regulatory
Authority, any two members can validly conduct the proceedings
of the Regulatory Authority and can adjudicate upon various issues
as contemplated under Sections 11 and 12 of the said Act of 2005.
He invited our attention to the various provisions of the said Act.
He contended that as a result of the resignation, Mr. S. V. Sodal,
Member (Engineering) will not be available, but the Regulatory
Authority can invoke powers of sub-Section 9 of Section 8 and
may appoint some experts in the field of Water Resources
Engineering as consultants. He submitted that the consultants so
appointed can assist the Regulatory Authority.
13. The learned senior counsel representing the 10th Respondent
urged that the situation created by the water scarcity in Solapur
District is precarious and, therefore, this Court should not interfere
with the impugned order. The learned counsel appearing for the
Regulatory Authority, on instructions of the Secretary to the
Regulatory Authority, states that if this Court is inclined to remand
the matter for reconsideration, an endeavour shall be made by the
Regulatory Authority to pass the final order within a period of eight
to ten days from 14th December 2015.
14. We have given anxious consideration to all these
submissions. As recorded earlier, it is an accepted position that Mr.
S. V. Sodal had a direct and proximate pecuniary interest in the
subject matter of Case No. 5 of 2015 and Case No. 6 of 2015,
which were decided by the impugned order. Therefore, it is
necessary to deal with the submission made by the learned senior
counsel representing the 10th Respondent. He relied upon
paragraph 8 of the decision of the Apex Court in the case of
Manak Lal (supra) which reads thus:
“8. The next question which falls to be
considered is whether it was open to the
appellant to take this objection for the
first time before the High Court. In other
words, has he or has he not waived his
objection to the presence of Shri Chhangani
in the tribunal? Shri Daphtary does not
seriously contest the position that the
objection could have been effectively
waived. The alleged bias in a member of the
tribunal does not render the proceedings
invalid if it is shown that the objection
against the presence of the member in
question had not been taken by the party
even though the party knew about the
circumstances giving rise to the
allegations about the alleged bias and was
aware of his right to challenge the
presence of the member in the tribunal. It
is true that waiver cannot always and in
every case be inferred merely from the
failure of the party to take the objection.
Waiver can be inferred only if and after it
is shown that the party knew about the
relevant facts and was aware of his right
to take the objection in question. As Sir
John Romilly, M.R. Has observed in Vyvyan
v. Vyvyan (1861) 30 Beav 65 at p. 74: 54
E.R 813 at p.817 (E) waiver or
acquiescence, like election, presupposes
that the person to be bound is fully
cognizant of his rights and that being so,
he neglects to enforce them, or chooses one
benefit instead of another, either but not
both, of which he might claim. “If, in the
present case, it appears that the appellant
knew all the facts about the alleged
disability of Shri Chhangani and was also
aware that he could effectively request the
learned Chief Justice to nominate some
other member instead of Shri Chhangani and
yet did not adopt that course, it may well
be that he deliberately took a chance to
obtain a report in his favour from the
tribunal and when he came to know that the
report had gone against him he thought
better of his rights and raised this point
before the High Court for the first time.
In other words, though the point of law
raised by Shri Daphtary against the
competence of the tribunal be sound it is
still necessary for us to consider whether
the appellant was precluded from raising
this point before the High Court by waiver
or acquiescence.”
(Emphasis added)
15. We must also note what is observed by the Apex Court in
paragraph 9 of the same decision. The Apex Court has noted that
the High Court found that there was no substance in the allegations
about the pecuniary interest of a Member of the Tribunal against
whom allegations of bias were made. The Apex Court specifically
observed that the High Court found that the allegations of
pecuniary bias against the Member of the Tribunal were wholly
unfounded and substance was found only in the allegations of
personal bias.
16. We must also note the law laid down by the Apex Court in
paragraph 4 of the said decision in the case of Manak Lal (supra).
The relevant portion of the said paragraph reads thus:
“It is well settled that every member of a
Tribunal that is called upon to try issues
in judicial or quasi-judicial proceedings
must be able to act judicially; and it is
of the essence of judicial decisions and
judicial administration that Judges should
be able to act impartially, objectively and
without any bias. In such cases the test is
not whether in fact a bias has affected the
judgment; the test always is and must be
whether a litigant could reasonably
apprehend that a bias attributable to a
member of the Tribunal might have operated
against him in the final decision of the
Tribunal. It is in this sense that it is
often said that justice must not only be
done but must also appear to be done. As
Viscount Cave, L.C. Has observed in Frome
United Breweries Co. v. Bath
Justices[ (1926) AC 586, 590] “This rule
has been asserted, not only in the case of
Courts of Justice and other judicial
Tribunals, but in the case of authorities
which, though in no sense to be called
Courts, have to act as Judges of the rights
of others.” In dealing with cases of bias
attributed to members constituting
Tribunals, it is necessary to make a
distinction between pecuniary interest and
prejudice so attributed. It is obvious that
pecuniary interest, however small it may be
in a subject-matter of the proceedings,
would wholly disqualify a member from
acting as a Judge. But where pecuniary
interest is not attributed but instead a
bias is suggested, it often becomes
necessary to consider whether there is a
reasonable ground for assuming the
possibility of a bias and whether it is
likely to produce in the minds of the
litigant or the public at large a
reasonable doubt about the fairness of the
administration of justice. It would always
be a question of fact to be decided in each
case. “The principle”, says Halsbury, “nemo
debet esse judex in causa propria
sua precludes a justice, who is interested
in the subject-matter of a dispute, from
acting as a justice therein” [ Halsbury’s
Laws of England, Vol 21, p. 535, para
952] . In our opinion, there is and can be
on doubt about the validity of this
principle and we are prepared to assume
that this principle applies not only to the
justices as mentioned by Halsbury but to
all Tribunals and bodies which are given
jurisdiction to determine judicially the
rights of parties.
(Emphasis added)
17. At this stage, a reference will have to be also made to the
well known decision of the Apex Court in case of J. Mohapatra &
Co., & Anr. v. State of Orissa & Anr.4
In paragraph 9 of the said
4
(1984) 4 SCC 103
decision, the Apex Court has quoted with approval the position of
law which has been stated in Halsbury’s Laws of England, Fourth
Edition, Volume 1, para 68. Paragraph 9 of the said decision of the
Apex Court reads thus:
“9. It is, however, unnecessary to go
further into this controversy for the real
question in this appeal is of far greater
importance. That is the question of bias on
the part of some of the members of the
Assessment Sub-Committee. This question has
been answered against the appellants and
forms the subject-matter of the third and
fourth grounds on which the High Court
rested its decision. Nemo judex in causa
sua, that is, no man shall be a judge in
his own cause, is a principle firmly
established in law. Justice should not only
be done but should manifestly be seen to be
done. It is on this principle that the
proceedings in courts of law are open to
the public except in those cases where for
special reason the law requires or
authorizes a hearing in camera. Justice can
never be seen to be done if a man acts as a
judge in his own cause or is himself
interested in its outcome. This principle
applies not only to judicial proceedings
but also to quasi-judicial and
administrative proceedings. The position in
law has been succinctly stated in
Halsbury’s Laws of England, Fourth Edition,
Volume 1, para 68, as follows:
Disqualification for financial interest.-
There is a presumption that any direct
financial interest, however small, in the
matter in dispute disqualifies a person
from adjudicating. Membership of a company,
association or other organisation which is
financially interested may operate as a bar
to adjudicating, as may a bare liability to
costs where the decision itself will
involve no pecuniary loss.”
(Emphasis added)
18. Thus, what is held by the Apex Court in the aforesaid
decisions is that the presence of direct pecuniary interest
irrespective of its extent operates as a complete disqualification to
adjudicate a dispute. The complete disqualification operates
irrespective of the fact that the pecuniary interest may be very
small. In such a case, the issue of waiver of objection regarding
bias will not arise at all as the presence of pecuniary bias prevents
the Judge from taking up the case in which he has pecuniary
interest. Therefore, any direct financial interest operates as a
complete bar which prohibits a person exercising even quasi
judicial powers from participating in the process of adjudication.
Hence, the plea of waiver is not available in such cases. As stated
earlier, this is a case where the pecuniary and proximate interest in
the subject matter of the case is admitted by Shri Sodal. There is in
our view a distinction to be drawn between a personal bias, one
that may be waived, and a pecuniary bias which stands on a wholly
different footing. In the first place, to be invoked waiver requires
that a disclosure be made of the possibly conflicting interest. It is
when that interest is made known that a party can waive it. But this
can only apply in the case of a personal bias such a relationship or
a friendship. A pecuniary bias stands on another footing altogether.
On the principles enunciated in Mohapatra’s case, a direct,
proximate and existing pecuniary bias can never be waived. It is to
be noted that in Mohapatra’s case, the Apex Court held that the
existence of a pecuniary interest was a disqualification and that this
disqualification did not depend on the amount of the pecuniary
interest. The Apex Court also rejected the invocation of the
doctrine of necessity in such a case by holding that nothing
prevented the government in that case from reconstituting the
committee in question.
19. There is one more reason as to why the plea of waiver is not
available in this case. The Apex Court had an occasion to consider
the same in the case of State of Punjab v. Davinder Pal Singh
Bhullar & Ors.5
In paragraph 94, the Apex Court held thus:
“94.Mr. K.N. Balgopal, learned Senior
Counsel appearing for the respondents has
submitted that the issue of bias must be
agitated by a party concerned at the
earliest ad it is not permissible to raise
it at such a belated stage. The legal
proposition in this regard is clear that
if a person has an opportunity to raise
objections and if he fails to do so, it
would amount to waiver on his part.
However, such a person can raise
objections only if he is impleaded as a
party-respondent in the case and has an
opportunity to raise an objection on the
ground of bias. In the instant case,
neither the State of Punjab nor Mr. S.S.
Saini have been impleaded as the
respondents. Thus, the question of waiver
on the ground of bias by either of them
does not arise.”
(Emphasis added)
5
2011(14) SCC 770
20. Coming back to the facts of the case in hand, the Petitioner
in Writ Petition No. 11426 of 2015 was not a party to the original
proceedings before the Regulatory Authority. His application for
intervention was not entertained by the Regulatory Authority.
Therefore, there was no opportunity available to him to raise an
objection of personal bias. Therefore, as far as the Petitioner in
Writ Petition No. 11426 of 2010 is concerned, the plea of waiver is
not available at all. Moreover, it is not the case made out that when
he applied for intervention, he was aware about the bias. We must
note that when the Review Petitions were placed before the
Regulatory Authority on 17th November 2015, a specific objection
was raised by one of the Review Petitioners, which was accepted
by Mr. S. V. Sodal, and he recorded his wish to recuse himself.
Therefore, the argument based on waiver deserves to be outright
rejected.
21. The second argument canvassed before the Court is that
principles of natural justice would not apply when there is a
necessity. The said submission is based on the decision of the Apex
Court in the case of State of Uttar Pradesh v. v. Sheo Shanker Lal
Srivastava & Ors. (supra). Paragraph 16 of the said decision deals
with doctrine of necessity.
“16. Referring to the doctrine of
necessity, Sir William Wade in his
Administrative Law stated:
‘ But there are many cases where no
substitution is possible, since no one else
is empowered to act. Natural justice then
has to give way to necessity; for otherwise
there is no means of deciding and them
machinery of justice or administration will
break down.’
It was further stated:
‘In administrative cases the same exigency
may arise. Where the statute empowers a
particular minister or official to act, he
will usually be the one and only person who
can do so. There is then no way of escaping
the responsibility, even if he is
personally interested. Transfer of
responsibility is, indeed, a recognised
type of ultra vires. In one case it was
unsuccessfully argued that the only
minister competent to confirm a compulsory
purchase order for land for an airport had
disqualified himself by showing bias and
that the local authority could only apply
for a local Act of Parliament.”
(Emphasis added)
22. In the present case, the specific stand of the State
Government is that two members out of the three could have
validly conducted the proceedings of the Regulatory Authority. We
may note here that though the Chairperson was not a part of the
adjudicatory procees while passing the impugned order dated 26th
October 2015, when the Review Petitions were heard, he was very
much a part of the adjudicatory process. The submission of the
learned Government Pleader is supported by the said Regulations
and in particular clause 3 of Regulation 9 which lays down that the
quorum of meetings of the Regulatory Authority shall be two-thirds
of the full strength of the Authority (the Chairperson and two
members). Therefore, even if Mr. S. V. Sodal had recused himself,
the cases could have been heard by the Chairperson and the other
member of the Regulatory Authority. Therefore, the doctrine of
necessity sought to be invoked will not apply in the present case.
23. There is one more serious aspect of the case, which must be
noted. In paragraph 6 of its decision in the case of Narinder Singh
Arora v. State (Government of NCT of Delhi) & Ors.6
, the Apex
Court held thus:
“6. It is well-settled law that a person
who tries a cause should be able to deal
with the matter placed before him
objectively, fairly and impartially. No one
can act in a judicial capacity if his
previous conduct gives ground for believing
that he cannot act with an open mind or
impartially. The broad principle evolved by
this Court is that a person, trying a
cause, must not only act fairly but must be
able to act above suspicion of unfairness
and bias.”
24. In the well known decision of the Apex Court in the case of
A. K. Kripak v. Union of India7
in paragraph 15, the Apex court
held thus:
“15. It is unfortunate that Naquishbund was
appointed as one of the members of the
selection board. It is true that ordinarily
the Chief Conservator of Forests in a State
should be considered as the most
appropriate person to be in the selection
board. He must be expected to know his
officers thoroughly, their weaknesses as
well as their strength. His opinion as
regards their suitability for selection to
6
(2012) 1 SCC 561
7
1969 (2) SCC 262
the All India Service is entitled to great
weight. But then under the circumstances it
was improper to have included Naquishbund
as a member of the selection board. He was
one of the persons to be considered for
selection. It is against all canons of
justice to make a man judge in his own
cause. It is true that he did not
participate in the deliberations of the
committee when his name was considered. But
then the very fact that he was a member of
the selection board must have had its own
impact on the decision of the selection
board. Further admittedly he participated
in the deliberations of the selection board
when the claims of his rivals particularly
that of Basu was considered He was also
party to the preparation of the list of
selected candidates in order of preference.
At every stage of this participation in the
deliberations of the selection board there
was a conflict between his interest and
duty. Under those circumstances it is
difficult to believe that he could have
been impartial. The real question is not
whether he was biased. It is difficult to
prove the state of mind of a person.
Therefore what we have to see is whether
there is reasonable ground for believing
that he was likely to have been biased. We
agree with the learned Attorney-General
that a mere suspicion of bias is not
sufficient. There must be a reasonable
likelihood of bias. In deciding the
question of bias we have to take into
consideration human probabilities and
ordinary course of human conduct. It was in
the interest of Naqishbund to keep out his
rivals in order to secure his position from
further challenge. Naturally he was also
interested in safeguarding his position
while preparing the list of selected
candidates.”
25. The Apex Court reiterated that the real question is not
whether there was a bias. The test laid down by Apex Court is to
see whether there is any reasonable likelihood of bias. We may also
make an useful reference to the decision of the Apex Court in the
case of Ranjit Thakur v. Union of India8
and in particular
paragraphs 16 and 17 thereof. Paragraphs 16 and 17 read thus:
“16.It is the essence of a judgment that it
is made after due observance of the
judicial process; that the court or
tribunal passing it observes, at least the
minimal requirements of natural justice; is
composed of impartial persons acting fairly
and without bias and in good faith. A
judgment which is the result of bias or
want of impartiality is a nullity and the
trial‘ coram non judice’ ….
17. As to the tests of the likelihood of
bias what is relevant is the reasonableness
of the apprehension in that regard in the
mind of the party. The proper approach for
the Judge is not to look at his own mind
and ask himself, however, honestly, 'Am I
biased?'; but to look at the mind of the
party before him.”
(Emphasis added)
Coming back to the case in hand, Mr. S. V. Sodal candidly accepted
before this Court that his agricultural lands would have been
benefited on the implementation of the impugned order dated 26th
October 2015. In fact, he stated that he holds 12 Acres of
agricultural land, which will directly benefit from the impugned
8
1987 (4) SCC 611
order dated 26th October 2015. Therefore, in our view, it was not
even necessary for any of the party to the proceedings to raise an
objection of personal or pecuniary bias. In fact, Mr. S. V. Sodal
should, on his own, have recused himself when the Case No. 5 of
2015 and Case No. 6 of 2015 were placed before the Regulatory
Authority.
26. Therefore, there is no option but to hold that the impugned
order dated 26th October 2015 is completely vitiated.
27. In the circumstances, the impugned order will have to be set
aside. Consequently the orders passed on the Review Petitions will
also have to be set aside.
28. As the impugned order dated 26th October 2015 is being set
aside, nothing will survive in Writ Petition No. 11721 of 2015.
29. Considering the serious issue involved and considering that a
large number of citizens will be affected by the process of
adjudication conducted by the Regulatory Authority, we hope and
trust that the Regulatory Authority will decide the issue
expeditiously as assured by the learned counsel appearing for the
Regulatory Authority. We accept the statement made by the learned
Government Pleader to the effect that sub-section 9 of Section 8
will be invoked by the Regulatory Authority by taking assistance of
experts in the field. Hence, we pass the following order:
(a) The impugned order dated 26th October 2015 in Case
Nos. 5 and 6 of 2015 passed by the Regulatory
Authority is quashed and set aside and both the cases
are remanded for fresh adjudication of the Regulatory
Authority in terms of this Judgment and Order;
(b) In view of the statement made by the learned counsel
for the Regulatory authority, we direct the parties to
the Petition to remain present before the Regulatory
authority on 14th December 2015 at 11.00 a.m.;
(c) We make it clear that all the parties which were before
the Regulatory Authority when the impugned order
was passed as well as the Petitioners in these
Petitions / the parties who sought intervention and
who sought review of the order shall be given an
opportunity of being heard by the Regulatory
Authority;
(d) We accept the assurance made by the learned counsel
appearing for the Regulatory Authority that an
endeavour shall be made to decide the cases within a
period of eight to ten days from 14th December 2015.;
(e) All contentions of the parties based on the merits of
the controversy, are expressly kept open;
(f) It is obvious that the Regulatory Authority will pass a
fresh order on its own merits uninfluenced by the
findings recorded in the impugned order;
(g) Rule issued in Writ Petition Nos. 11426/15 Writ
Petition No. 11152/15, Writ Petition No. 11165/15 and
Petition No. 11555/15, except Writ Petition No. 11721
of 2015 is hereby made partly absolute on the above
terms;
(h) Writ Petition No. 11721 of 2015 stands disposed of as
the same does not survive;
(i) The Regulatory Authority and all concerned to act on
an authenticated copy of the operative part of this
order.
(G. S. PATEL, J.) (A. S. OKA, J.)
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