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Jaydevbhai vs General

High Court Of Gujarat|21 June, 2012
Heard Mr. Kapadia, learned advocate for the petitioner, and Mr. Pandya, learned advocate for the respondent - authority. Rule. Mr. Pandya has waived service of Rule and with consent of learned advocates for concerned parties, the petition is heard finally.
2. In present petition, an order brought under challenge is the order dated 27.1.2011 (Annexure-J Page-42 and 43).
2.1 The said entire order reads thus:-
"1.0 PREABLE 1.1 This Order is made under Section-19 of the Right to Information Act, 2005.
1.2 The appeal may be filed within 90 days from the date on which this order should have been made or is actually received.
2.0 FACTS 2.1.1 The appellant Shri Jaydevbhai M Nanvani filed an application dated 30th November, 2010 to CPIO under the Right to Information Act, 2005 (RTI ACT).
2.1.2 The CPIO, CHQ vide letter dated 3rd December, 2010 responded to the Appellant.
2.1.3 Aggrieved by the said response, the appellant has filed this appeal dated 14/12/2010 (received on 04/01/2011).
3.0 FINDINGS/ORDER 3.1 I have carefully examined the application, the rsponse and the appeal and find that the matter can be decided based on material available on record.
3.2 Query No.1) The query has been correctly replied to by the CPIO.
3.3 Query No.2) The result has already been intimated to you vide letter dated 20/08/2010 and no additional height is permissible, however, if you so desire, you may appea for higher height to the Chairman, Appellate Committee, Ministry of Civil Aviation, B Block, Rajiv Gandhi Bhawan, Safdarjung Airport, New Delhi - 110 003.
With this, the first appeal of Shri Jaydevbhai M Nanvani stands disposed of."
2.2 The order impugned is passed by the Executive Director (ATM) First Appellate Authority. The petitioner is aggrieved by the said order.
3. Mr. Kapadia, learned advocate for the petitioner, has relied on memo of appeal filed by the petitioner before the said first appellate authority (Annexure-I, Page-28 to 40). Relying on the said appeal memo, the learned counsel for the petitioner has submitted that the appellate authority has not considered various relevant details and the contentions raised by the petitioner in the appeal. He has submitted that the order passed by the appellate authority is non-speaking and non-reasoned order and the appellate authority has mechanically confirmed the earlier decision and that therefore, the said order deserves to be set aside. He also relied on cases of other similarly situated persons, who have been granted height permission higher than what is granted to the petitioner. He has claimed that there is no justification for such discrimination because the "height permission" which is granted in respect of very adjacent plot, is higher/more than what is granted to the petitioner.
4. Mr. Pandya, learned advocate for the respondent, has submitted that as mentioned in the order, the petitioner has alternative remedy available to him, inasmuch as the appeal against the impugned order would lie before the second appellate authority.
Except the said contention, any other contention has not been raised.
5. I have examined the order passed by the first appellate authority and have also perused the memo of appeal filed by the petitioner. It appears from perusal of the appeal memo that the petitioner raised various contentions and mentioned various details for consideration by the appellate authority, however, in the impugned order, there is no discussion about the details/facts mentioned by the petitioner and/or about the contentions raised by the petitioner and there is no mention or reference about those details or contentions and the said aspects do not appear to have been dealt with by the appellate authority. When the appellate authority confirms the order of lower authority, in given set of facts of the case, the appellate authority may not record detailed reasons. However, atleast what is expected from order of the appellate authority, more particularly when it is appellable before the second appellate authority, is reasons in support of the decision and reflection of the process of reasoning. The order should atleast disclose the reasons for which the contentions are not accepted.
5.1 The Apex Court has observed in catena of decisions that reasoning is heart of the order.
On perusal of the impugned order, it emerges that the order does not record any reasons or justification in support of the decision rejecting the petitioner's request.
Therefore, without entering into merits of the contentions and the details mentioned by the petitioner, it appears that the petition can be disposed of on limited ground, viz. on the ground that the order impugned in present petition is a non-speaking and non-reasoned order, which ought to be set aside and matter deserves to be remitted to the authority. Therefore, below mentioned order is passed:-
(A) The impugned order is set aside and the matter is remitted to the first appellate authority for appropriate reasoned and speaking order dealing with the details mentioned and contentions raised by the petitioner.
(B) The first appellate authority will consider the contentions raised and details mentioned by the petitioner and pass a fresh appropriate reasoned and speaking order.
With the aforesaid observation and direction, present petition stands disposed. Rule is made absolute to the extent above.
6. It is clarified that this Court has not entered into the merits of the matter and the impugned order is set aside only on the limited ground viz. want of reasoning, and the appellate authority shall independently decide the appeal on its own merits.
Direct service is permitted.
(K.M.Thaker, J.) kdc Top
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Jaydevbhai vs General


High Court Of Gujarat

21 June, 2012