BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH …awsassets.wwfindia.org/downloads/ashish_rajanbhai... · Bharuch Dated 26-2-2013. To. 1. Rajendra K. Goyal, residing at 8, MohanKrupa

of 26

BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH

NEW DELHI …………..

APPEAL NO. 30 of 2013

In the matter of :

1. Ashish Rajanbhai Shah,

Resident of 154, Pritam Society

Bharuch, Gujarat.

…..Appellant

Versus

1. Union of India

Through its Secretary

Ministry of Environment and Forests

Paryavaran Bhawan, CGO Complex

Lodhi Road, New Delhi-110 003.

2. State of Gujarat

Through its Secretary

Department of Environment

Govt. of Gujarat

Blok No. 14/8

New Sachivalaya

Gandhinagar

3. Mr. B.J. Soni

Deputy Collector Jambusar

Gujarat

…….Respondents

of 26

Counsel for Appellant :

Mr. A.K. Prasad Advocate, and

Mr. Harshvardhan Jha, Advocate.

Counsel for Respondents :

Ms. Neelam Rathore, Advocate with Ms. Syed Amber, Advocate,

Mr. S. Panda for H. Wahi, Advocate for Respondent No.1

ORDER

CORAM :

Hon’ble Mr. Justice Swatanter Kumar (Chairperson)

Hon’ble Mr. Justice U. D. Salvi (Judicial Member)

Hon’ble Dr. D.K. Agrawal (Expert Member)

Hon’ble Dr.G.K. Pandey (Expert Member)

Hon’ble Prof. A.R. Yousuf (Expert Member)

Dated: July 11, 2013

JUSTICE SWATANTER KUMAR (CHAIRPERSON)

1. The National Green Tribunal Act, 2010 (for short “the NGT

Act”) came into force on 18th October, 2010. As per the Act, under

Section 16(g) any direction issued on or after commencement of

the Act under Section 5 of the Environment (Protection) Act, 1986

(for short “the Act”) is appealable before this Tribunal. The appeal

can be filed by any person aggrieved from issuance of such

of 26

direction. The present appellant being aggrieved from the

direction issued by the Collector, Bharuch, Gujarat dated, 26th

February, 2013 has preferred the present appeal. The said order

reads as under:

“No. Bhumi/S.I./Vashi/1555 Collector Office, Chitnis Branch Bharuch Dated 26-2-2013. To.

1. Rajendra K. Goyal, residing at 8, MohanKrupa Society, Opp. Jain Temple,

Manjalpur, Vadodara,

2. Ashish Rajanbhai Shah, residing at 154, Pritam Society-1, Bharuch.

3. Amishaben Thakorbhai Patel, residing of Gajera, Taluka Jambusar.

Sub:- Regarding damage to Mangrove

trees in the land allotted for Salt Industry

in C.R.Z. Area.

“It is hereby being informed to you that you have been allotted on Rental Lease Agreement basis, the unnumbered land, out of the lands of Block Nos. 1639 and -1640 Paiki, situated in Mauje village Nada, Taluka Jambusar, District Bharuch. Because of Construction of Obstructing mud-walls in the Sea Belt, the natural flow of sea water has stopped and hence, damage is being caused to the Mangrove Trees. Hence, it is hereby

of 26

informed to you immediately make open the natural Sea Belt for the natural flow of the sea water, with a view to see that the sea waters can naturally flow to the Mangrove Trees and thereby, the damage being caused to the Mangrove Trees is stopped. Kindly implement the above instruction

immediately and thereafter, intimate to this office.

Sd/- Illegible

Collector Bharuch”

2. The above order interalia but primarily is challenged on the

following grounds:-

(i) The impugned order suffers from the infirmity of non-

application of mind. The authority has acted contrary to the

principles of natural justice and has not felt the need to

dwell upon the various contentions that have been raised by

the appellant in its reply dated, 4.2.2012 and 10.2.2012

respectively.

(ii) The Collector on the one hand has failed to deal with

the contentions of the reply filed on behalf of the appellant,

while on the other hand has also failed to record any reason

for passing the impugned order.

(iii) The land and the activity of the appellant fell in CRZ (I)

and not CRZ (III) for which the appellant had produced

of 26

records but they have been completely ignored by the

Collector while passing the impugned order in the present

appeal.

3. Now, we may refer to the basic facts giving rise to the

present appeal. Vide order no. Bhumi/S.I./Vashi/227 dated, 27th

January, 2011, the Collector had allotted 300 acres of land to the

appellant for the purpose of establishing the salt industry.

According to the appellant, prior to the passing of the order, the

Collector, Bharuch had called for the necessary opinion from

various relevant departments and it was subsequently

recommended to allot the said land to the appellant for the said

purpose. Actual measurement on the site of the plan had been

carried out to demarcate the said land. This land was given on

lease and the appellant had deposited the ground rent of Rs.

39,600/- by a challan dated, 03.06.2011 and also deposited Rs.

2000/-, the amount of the deposit on 7th April, 2009. The

appellant also claims to have deposited the local fund amount of

Rs. 99,000 payable upon the rent amount and education cess of

Rs. 9,900 with the Talati cum Mantri, before actual possession of

the land was handed over to the appellant. The lease in favour of

the appellant was granted with certain Terms and Conditions and

of 26

it was stated in the order of the Collector, which contained 47

Terms and Conditions, that if the appellant fails to follows any

condition therein or any condition that is added by the

Government later, then the lease contract would automatically

terminate without any intimation to the appellant and the

compensation as well as the deposit amount would be retained

by the Government as well. Prior to this, the Additional Industrial

Commissioner, District Gandhinagar vide its order dated 8

February, 2008, had informed the District Collector Bharuch as

follows:-

“This is to inform you that there is no need for the Salt producing unit in the District to obtain any C.R.Z. Certificate from the Forests and Environment Department. Hence, the information related to the Revenue villages as well as showing their limits, may kindly be sent directly to the Deputy Salt

Commissioner.

4. The appellant in order to carry out its activity of salt

industry had made the bunds around the land so as to collect

brine water in the crystallizers for solar evaporation, till salt

deposition took place. Thereafter, the deposited salt is scrapped

from the crystallizer and collected at the platform before the

salinity increases beyond 280 Be. The entire process takes 45

of 26

days’ time and it is a continuous seasonal process. Salt is

manufactured from sea brine or subsoil brine, of the salinity

ranging from 20 to 80 Be.

5. Gujarat Ecological Commissioner, vide letter dated 28th

August, 2012, had written to the Principal Secretary, Forest and

Environment Department, Government of Gujarat, Gandhinagar

and stated that upon conducting the spot verification in salt

leases, some of the mangrove trees ‘seem’ to have been damaged

during the bund work. It was also mentioned therein that as per

the provisions contained in the CRZ Notification, setting up of

new industries and expansion of existing industries is prohibited.

The Member Secretary of the said Commission stated that upon

spot verification, the salt manufacturing activity was being

carried out and bunds had been constructed by removing of soil

and some of the mangrove trees seemed to have been damaged

during the digging of bunds.

(emphasis supplied by us)

6. Further it also referred to the fact that about 8 creeks of

smaller and bigger sizes are blocked due to construction of the

bund and an apprehension was expressed that mangrove trees

of 26

are likely to be destroyed in future as well. In the provisions and

conditions of CRZ Notification Para 7(i), it was stated that part of

area falls under the category of CRZ (I).

7. The Collector issued a Notice dated 4th December 2012,

directing the appellant to stop all the activities which were

allegedly resulting in the damage to mangrove trees. This notice

had made a reference to the letter of the Gujarat Ecology

Commission dated 28.08.2012. However from the language and

contents of this letter it appears that the copy of the said notice

was annexed with the said notice. Notice dated 4.12.2012 reads

as under:

“No. Bhumi/S.I/Vashi/63 Collector Office, Chitnis Branch, Bharuch Dated 4-12-2012.

To

Shri B.J. Soni Deputy Collector Jambusar. Sub:- Regarding damage to Mangrove Trees in the land allotted for salt Industry Ref:- Letter No. GEC/T/-14/2384-88 dt. 28-8-2012 of the Member Secretary, Gujarat Ecology Commission, Gandhi Nagar.

of 26

In context to the above cited subject, vide the letter referred to hereinabove, a representation is made before this office regarding the damage to the Mangrove Trees because of digging of the mud for using it for the purpose of construction obstruction mud walls in salt pans in the unnumbered saline waste land allotted, adjacent of Revenue Survey No. 1639/1640 for salt Industry at Mauje Village Nada, Taluka Jambusar. In the said letter, instructions have been given to stop all the activities damage the mangrove trees by the lease holder in the said Rental lease land allotted for salt Industry. Hence, as per the below mentioned details, instructions are hereby being given to initiate all the necessary steps for immediately upon receipt of this letter, for stopping all the activities damaging the Mangroves trees by the lease holder in the said Rental lease land allotted for Salt Industry. Since the Report containing all the steps initiated by you is to be produced before the Government, you are informed to immediately send your Report for the Steps initiated by you.

SN Name and

Address Village/ Taluka

Revenue Survey No./ Measureme

nt

Order No. and Date

1. Rajendra K. Goyal, residing at 8, Mohamkrupa

Society, Opp.

Jain Temple, Manjalpur, Vadodara

Nada, Tal. Jambusar

350 Acres out of the unnumbered relevant

of 1639

Bhumi/S.I./J.F./ Vashi/9

935

dt. 11-11-2011

2. Ashish

Rajanbhai Shah, residing at 154, Pritam Society-1, Bharuch

Nada, Tal.

Jambusar

300 Acres

of the unnumbered relevant of 1640

Bhumi/

S.I./J.F./ Vashi/227 dt. 21-1-2011

of 26

3. Amishaben

Thakorbhai Patel, residing

of Gajera, Taluka Jambusar

Nada. Tal.

Jambusar

300 Acres

out of the unnumbere

d relevant of 1639

Bhumi/

S.I./J.F./

Vashi/3754 dt. 7-6-2011

Further in respect of all other leases of this village:-

1. to stop immediately all the activities damaging the Mangrove trees in and around the tidal land region, to see that the sea passage and passage of natural tidal flows are not stopped, and if any such activities are done without the permission of the Competent officers, then it shall be considered as the violation the Notification of C.R.Z and hence, all such activities should be stopped.

2. Further, if any activities of construction of any types of obstructing walls are going on in the C.R.Z. areas, then it hereby informed stop the same.

Sd/- Illegible Deputy collector, Jambusar.

No. Bhumi/Vashi/2221 Mamlatdar Officer,

Jambusar”

8. According to the appellant, though this was said to be a

notice but in fact it was only a direction to stop all activities. The

letter had called for the reports from the Collector and copy

thereof was also addressed to three other parties all of whom

have also preferred an appeal before the Tribunal.

9. A detailed written reply was made by the appellant to the

District Collector and he took various pleas in the said reply.

of 26

While denying that the applicant had violated the notification and

damaged the environment or any mangrove trees, a specific plea

was taken that the mangrove trees provided a benefit to the salt

industries and thus, the appellant could never damage such

trees. It was for the reason that these mangrove trees also

protected the mud walls which were erected by the salt industry.

However, when there is a high tide which is forceful, then it

uproots these mangrove trees. Hence, no damage or destruction

of mangrove trees is caused by the appellant. The Sarpanch of

the village, after inspection of the site had also issued a

certificate dated, 8.9.2012 stating that there was no damage done

to the mangrove trees by the salt industry of the appellant, while

referring to erection of mud bunds it was said that they were

erected strictly in consonance with the terms and conditions laid

down in the lease order. Also it was stated that the mud bunds

were erected at a distance of 700 meters from the sea and did not

cause any damage to the natural sea water. As far as violation of

Condition No. 42 was concerned, it was stated in the reply that

no permission was required to be obtained from the CRZ

Authority in view of the letter of the Additional Industrial

Commissioner as aforestated. This was a detailed reply and it

of 26

also stated that the direction to stop all activity was issued to the

appellant without affording any opportunity. Thus, on the interim

prayer made by the appellant for stay of the operation of notice-

cum-direction dated 4th December, 2012, the Additional

Secretary had granted the order of stay on 21st December, 2012.

10. Again on 28st January, 2013, a notice was issued to all the

three parties to remain present on the date of hearing on 31st

January, 2013 at 12.00 p.m., and respond to the allegations

made therein. This notice also referred to the letter dated 4th

December, 2012, as a show cause notice. The parties in

response to the said notice appeared, and filed another reply

dated 4th February, 2013, wherein such allegations were denied.

11. Thereafter, the Collector passed the order dated, 26th

February, 2013, as afore referred, compelling the appellant to file

the present appeal on the grounds stated supra.

12. We think it will be appropriate for us to discuss all the three

grounds raised by the appellant together as they are inter-

connected and would require common discussion.

13. At the very outset, we may notice that as far as the plea that

the impugned order having been passed without affording an

of 26

opportunity to show cause against the proposed order is

concerned, the same deserves to be rejected. From the pleadings

of the s in the plea as well as in the documents annexed thereto,

it is clear that the notice-cum-direction dated 4th December, 2012

was served upon the appellant before the notice dated 28th

January, 2013, had been served and duly received by the

appellant. The appellant had not only received the said notice but

has also filed a detailed reply/representation against such

notices. The appellant thereafter, filed a representation before the

Authority which then passed the order dated 26.2.2013. In view

of this matter, appellant has been served with a show cause

notice and an opportunity of hearing was provided to him before

the impugned order was passed. Thus, this contention of the

appellant deserves to be rejected.

14. The next contention that we have to consider on behalf of

the appellant is that there is non-application of mind and non-

recording of reasons by the authority while passing the impugned

order. Further, it is also contended that there is no consideration

of relevant evidence, relevant materials and documents placed on

record have not been considered by the authority.

of 26

15. We may now refer to certain judgments on the point that an

administrative authority is also required to record reasons as to

show proper application of mind and the orders being in

conformity with the basic rule of law. In the case of State of West

Bengal & Anr Vs Alpana Roy & Ors. 2005(8) SCC 296 while

dealing with the order of the High Court which had not provided

for reasons in support of its order, the Supreme Court held that

High Court was in error in not recording reasons as it denied an

opportunity to the affected parties before the Appellate Court and

also referred to the necessity of providing reasons by the

authority. The Apex Court held under:-

“7. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable.

8. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148 observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley") Ltd. v. Crabtree 1974 LCR 120 it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in

of 26

question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the 'decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review, in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx".” is ordinarily incongruous with a judicial or quasi-judicial performance

16. In the case of Anil Kumar Vs Presiding Officer & Ors 1985

(3) SCC 378 the Court stated that it is a well settled norm that a

disciplinary enquiry or a quasi-judicial enquiry has to be

conducted in accordance with the principles of natural justice.

An enquiry report in a quasi-judicial enquiry must show the

reasons for arriving at a particular conclusion.

17. The Apex Court describing ‘reasons’ as the hallmark of

exercise of judicial power, further elucidated upon the same to be

described as an essential requisite of principles of natural justice

in the case of Secretary and Curator, Victoria Memorial Hall Vs.

Howrah Ganatantrik Nagrik Samity & Ors 2010 (3) SCC 732

of 26

"40. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind." Vide State of Orissa v. Dhaniram Luhar : AIR 2004 SC 1794; and State of Rajasthan v. Sohan Lal and Ors. : (2004) 5 SCC 573.

42. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. VideRaj Kishore Jha v. State of Bihar and Ors. : AIR 2003 SC 4664; Vishnu Dev Sharma v. State of Uttar Pradesh and Ors.: (2008) 3 SCC 172; Steel Authority of India Ltd. v. Sales Tax Officer, Rourkela I Circle and Ors. : (2008) 9 SCC 407; State of Uttaranchal and Anr. v. Sunil Kumar Singh Negi : AIR 2008 SC 2026; U.P.S.R.T.C. v. Jagdish Prasad Gupta : AIR 2009 SC 2328; Ram Phal v. State of Haryana and Ors. : (2009) 3 SCC 258; Mohammed Yusuf v. Faij Mohammad and Ors. : (2009) 3 SCC 513; and State of Himachal Pradesh v. Sada Ram and Anr. : (2009) 4 SCC 422.

43. Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know, as why his application has been rejected.”

18. We may also refer to a recent Judgment of this Tribunal in

Application No. 49 of 2012 M/s. Sesa Goa Ltd & Anr. Vs. State of

of 26

Goa & Ors. decided on 11th April, 2013 wherein the Tribunal

while considering similar issue stated the necessity for recording

of such reasons on the one hand and its consequences thereof on

the other.

19. Of course, reasons recorded by such authorities may not be

like judgments of courts, but they should precisely state the

reasons for rejecting or accepting a claim which would reflect due

application of mind. The Bombay High Court in the case of Pipe

Arts India Pvt. Ltd v. Gangadhar Nathuji Golmare, 2008 (6) MLJ

280 held:-

“Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before

Court.

Announcing reasons can also provide public understanding of how the numerous decisions of the system are integrated. In a busy Court, the reasons are an essential demonstration that the Court did in fact fix its mind on the case at hand. An unreasoned decision has very little claim to acceptance by the defeated party, and is difficult or impossible to accept as an act reflecting systematic application of legal

principles.”

20. In a Constitutional Bench of Supreme Court, in the

Case of SN Mukherjee Vs. Union of Inida (1990) 4 SCC 594 the

Supreme Court stated that A party appearing before the

Tribunal is entitled to know, either expressly or inferentially

of 26

the reasons stated by the Tribunal, and what it is to which

the Tribunal is addressing its mind.

21. The recording of reasons is also an assurance that the

authority concerned consciously applied its mind to the facts

on record. It also aids the appellate or revisional authority or

the supervisory jurisdiction of the High Court under Article

226 or the appellate jurisdiction of this Court under Article

136 to see whether the authority concerned acted fairly and

justly to mete out justice to the aggrieved person.

22. Another very important aspect of recording of reasons by

administrative or quasi-judicial authority is that the reasons

so recorded must have a nexus and should deal with the

grounds which have been raised by the affected party for

consideration by such authority. Recording reasons without

dealing with such contentions would tantamount to non-

recording of reasons. The authority concerned is expected to

apply its mind to all aspects of a case but most importantly to

the contentions raised by the affected party in relation to the

grounds or supporting arguments without which no adverse

order could be passed against such party. If such grounds

are not dealt with in the order passed by the authority,

of 26

neither the party nor the appellate authority would be able to

comprehend as to why their contentions have been rejected,

as the reasons are harbinger between the mind of the maker

of the order, to the controversy in question and the decision

or conclusion arrived at. This is the acid test for examining

fair opportunity and proper application of mind by the

authority concerned.

23. In the present case, as it appears from the record before this

Tribunal, there were three main allegations against the appellant.

A. The mud bunds constructed by the appellant were

illegal and likely to cause damage to the mangrove trees.

B. Appellant had violated ‘Condition 42’ of the Terms and

Conditions of the lease and had not obtained the permission of

CRZ or from the Concerned Environmental Department.

C. The appellant was carrying out a prohibitory activity in

terms of Notification dated 6th January, 2011, and was causing

damage to the Environment.

24. Firstly, we must notice that there is nothing on record to

show that the copy of the letter of the Gujarat Ecological

Commission dated 21st August, 2010, was furnished to the

of 26

appellant to enable him to offer his comments to the contentions,

thereof. Furthermore, the notice dated 4th December 2012

contained no grounds. It merely directed to close the bund work.

However, the communication dated 28th February, 2013,

contains certain allegations though none of them were required

to be answered by the appellant. The appellant had submitted a

detailed reply and documents in support thereof. The contention

of the appellant is that in terms of ‘condition 20’ of the Terms and

Conditions of his lease, it was mandatory for him to build

structures for the protection of the salt bunds. It was in

furtherance, to such conditions of the lease that the appellant

built the mud bund. How the fault was attributable to the case of

Anil Kumar Vs Presiding Officer & Ors 1985(3) SCC 378 is

therefore, not clear, and in any case, there is no discussion or

reasoning in the impugned order on that behalf. In relation to

violation of ‘Condition 42’ which reads as under:

“(42) Should take prior permission regarding Costal Regulation Zone (C.R.Z) and environment from the

concern Department of Government.”

25. The appellant therefore, require to take permission

regarding CRZ from the concerned department. According to the

of 26

appellant, it is contended that the area in question falls under

CRZ (III) and the activity of salt industries was not required to

take any permission from the CRZ authority. In this regard the

appellant had relied upon the letter of the Additional Industry

Commissioner, State of Gujarat, dated 8.2.2008, authored by the

Additional Industrial Commissioner, Gandhi Nagar, stating that

there was no need to obtain any CRZ certificate from the Forest

and Environment Department. The documents and the

averments made by the appellant clearly show that the appellant

had violated the ‘Condition 42’ of the Terms and Conditions of

the lease. It was expected of the authority to record reasons in

that regard to refer the matter that led to unjust view taken by

the Collector. In fact, the impugned order is totally silent even in

this regard. Lastly the allegation related to causing immense

pollution and damage to mangrove trees. In this regard, the

appellant had rendered detailed reply on record for the

consideration of the Collector. None of the points pleaded by the

appellant, in his reply has been dealt with by the Collector in the

impugned order. According to the appellant the mud bunds in

fact would help in maintaining the mangrove trees as they are

likely to be eradicated because of high tide. It was also their case

of 26

that the sea water was not obstructed entirely to reach the

mangrove trees, thus, neither there was threat to Mangrove trees

nor there was threat to environment by the activities carried out

by the appellant. According to them they were interested to

protect the mangrove trees along with carrying on of their

activities.

26. In addition to this, it was also the case put forward by the

consideration of the Collector that to some extent they were also

pumping water and using the same for the manufacture of salt.

27. Unfortunately even this issue finds no deliberation in the

order impugned.

28. The Department of Environment and Forests has issued a

CRZ Notification dated 6.1.2011. It defines the prohibited

activities within CRZ as well as the activities which could be

carried out in the said zone. ‘Clause 7’ of the said Notification

makes the classification of CRZ into CRZ (I), CRZ (II), CRZ (III)

and CRZ (IV). Even under CRZ (I) under clause ii (d) salt

harvesting by solar evaporation of sea water is a permissible

activity. The CRZ (III) declares an area of up to 200 meters of

high tide line to be no development zone. However, certain

of 26

exceptions have been carved thereto, including that under clause

(iii)(d) salt manufacturing from the sea water is permissible in the

no development zone. The Authority has accepted to deliberate

the plan upon these technical issues with some elucidation. The

impugned order dated 28th March, 2013, is patently unsupported

by reasons and demonstrated non-application of mind. The order

itself does not discuss any of the grounds except vaguely

mentioning that there is likelihood of damage to the mangrove

trees. Even the letter of the Gujarat Ecological Commission

dated. 28.8.2012, had noticed that some of the mangrove trees

seem to have been damaged. In other word even if the impugned

order is taken on its face value even then it was clearly based

upon an apprehension and not on any definite finding which

could form basis for passing of such a prohibitory order like the

impugned order.

29. An administrative authority and Tribunal are obliged to give

reasons and absence whereof could render the order liable to

judicial chastise. The order passed by the authority should give

reasons for its consequences and must show proper application

of mind. Violation of either of them could in the given facts and

circumstances of the case vitiate the order itself. An order of an

of 26

administrative authority may not provide reasons like a judgment

but the order must be supported by the reasons of rationality.

The distinction between an order passed by administrative

authority or a quasi-judicial authority has practically

extinguished and both are required to pass well reasoned orders.

(Reference: Assistant Commissioner, Commercial Tax Department,

Works Contract and Leasing, Kota Vs. Shukla and Brotherscourt

(2010)4SCC785.

30. While exercising such powers the concerned authority is

expected to record satisfaction objectively. Thus, such

satisfaction could only be expressed by recording of reasons. It

will be appropriate to take action on an order which records no

reasons and consequently no satisfaction thereof. If fact even in

case requiring recording of subjective satisfaction, recording of

reasons would be imperative, the content thereof however, may

differ. It is not sufficient to record as to which condition had been

violated. It must state as to how the condition had been violated

and what is the effect of the explanation rendered by the affected

parties and how the same was unsatisfactory. Then alone the

authority would determine as to what should be the

consequential order and what is required to be done by the

of 26

authority, and the same however has not been complied with in

the present case.

31. Recording of reasons even help in balancing the question of

onus. If the order records reasons which reflect satisfaction, then

the onus is on the person challenging it to show that such

reasons are unsuitable and improper. But in absence of such

reasons the applicant discharges primary onus only by raising a

challenge against such an order and such challenge could

include non-recording of reasons, non-application of mind and

patent arbitrariness. Then it is for the authority concerned to

meet such challenge and to show that there were valid grounds

in passing the impugned order. In the present case, the order

does not contain any reasons, furthermore nothing has been

reflected by the respondent on the file of the Tribunal to show

that there were any plausible reasons to the explanation

rendered by the appellant.

32. For the reasons aforestated, we see no reason to sustain the

order dated 26.2.2013. We thereby allow the appeal and quash

the impugned order. We further direct the Collector, Bharuch,

Gujarat to provide a hearing to the appellant, considering all

relevant documents produced by them and pass an order afresh

of 26

in accordance with law expeditiously and in any case not later

than 3 months from the date of passing of this order. In the fact

and circumstance of the case we leave the parties to bear their

own costs.

Justice Swatanter Kumar

(Chairperson)

Justice U. D. Salvi

Judicial Member

Dr. D.K. Agrawal

Expert Member

Dr.G.K. Pandey

Expert Member

Prof. A.R. Yousuf

Expert Member

New Delhi July 11, 2013

Documents

BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH …awsassets.wwfindia.org/downloads/ashish_rajanbhai... · Bharuch Dated 26-2-2013. To. 1. Rajendra K. Goyal, residing at 8, MohanKrupa