IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18953 of 2010 RAM LAKHAN CHOUDHARY . Versus BIHAR STATE HOUSING BOARD &ORS . ----------- 2. 19.04.2011 Heard learned counsel for the petitioner and the Housing Board. The petitioner is aggrieved by the order dated 11.10.2010 of the Executive Engineer directing him to remove unauthorized encroachments to the extent of 8.364 sq. meter alleged to be illegal construction on Plot No. 4H/38 on the Eastern side. Learned counsel for the petitioner submits that he had filed his reply to the show cause notice on 11.5.2005. Nothing was communicated to him thereafter of any dates of hearing and even the final order has not been informed. Counsel for the Board submits that the writ petition suffers from gross suppression of facts when it states that the petitioner has not been heard. He places a photo copy of the final order passed on 6.1.2009 stated to have been communicated to the petitioner also. He further prays for time to file a counter affidavit. The writ petition was filed on 18.11.2010 after serving a copy of the writ petition on the 2 Housing Board. Nearly six months later, the Board has not considered it necessary to file a counter affidavit to assist the Court in timely dispensation of justice. The submission that the supplementary affidavit has been filed only on 15.4.2011, justifying non filing of the counter affidavit does not impress the Court as the allegations substantially arise from the writ petition which the supplementary affidavit only seeks to support. In normal circumstances, the Court may not have allowed the Board to produce a document without an affidavit and decide the proceedings taking the petitioner by surprise. But the Court on reading of the order dated 6.1.2009 finds that it does not help the case of the Board in any manner. The order acknowledges the filing of a show cause by the petitioner. Why the cause shown was not acceptable and on what materials the subjective satisfaction of the authority with regard to an encroachment was arrived at finds no discussion in the order. The order states that the petitioner appeared, filed a written reply and was heard. The applicant had succeeded in proving his case. Directions were given to remove the encroachment. What was the applicants case and the petitioners defence, has all not been considered necessary for 3 discussion. The order was a statutory order in exercise of powers under Section 59 of the Bihar State Housing Board Act, 1982 (hereinafter referred to as the „Act‟). Section 62 of the Act provides that no order made by the competent authority shall be called in question in any Court and no injunction shall be granted by any Court. But the order is clearly amenable to judicial review under Article 226 of the Constitution of India. While exercising powers of judicial review, the Court is not concerned with the merits of the final decision unless question of perversity, findings contrary to records etc. arise. But the Court is concerned with the decision making process. A reasoned decision is a part of the decision making process. It is also a fundamental facet of the principles of natural justice. Reasons are the ultimate control on arbitrary exercise of statutory powers. They provide the link between the allegations, the defence and what transpires in the mind of the statutory authority to accept one view and reject the other. It enables the writ Court to decide whether the case calls for interference or not in exercise of powers of judicial review. A 4 unreasoned order by a statutory authority in exercise of statutory powers is no order at all. In, (2010) 9 SCC 496, Kranti Associates (P) Ltd. V. Masood Ahmed Khan emphasizing the need to give reasons the Supreme Court has explained as follows:- “ 15. This Court always opined that the face of an order passed by a quasi- judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the “inscrutable face of a sphinx” 47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi- judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision- making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant 5 facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants‟ faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor.) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain EHRR, at 562 para 29 and Anya v. University of Oxford wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving 6 reasons for the decision is of the essence and is virtually a part of “due process”. If the order is statutory in nature, its correctness shall have to be judged from the recitals contained in the order itself. No counter affidavit can improve upon the statutory order by seeking to explain it by what was intended or what was meant. No useful purpose shall be served by allowing the filing of a counter affidavit. The Court therefore sets aside the order dated 6.1.2009. The matter is remanded to the competent authority of the Bihar State Housing Board so that the matter is heard afresh and a reasoned and speaking order passed in accordance with law preferably within a maximum period of four months from the date of receipt/production of a copy of this order. Let a Xerox copy of the order dated 6.1.2009 placed during submission be kept on record. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)