Surya Bux Singh v. Gaon Sabha — 1977 DIGILAW 462 (ALL)

JUDGMENT A.K. Sharma, Member. - This Division Bench was constituted to answer the following reference from the learned Member Sri H.N. Agarwal:- "Whether notice in Z.A. Form 49-A is mandatory in proceedings under Section 122-B, U.P.Z.A. and L.R. Act and Rule 115-C U.P.Z.A. and L.R. Rules and whether non-issue of this notice renders the entire proceedings illegal and void." The reference was made in view of the conflicting rulings of Single Members of the Board on this subject. 2. Sri N.S. Chaudhary, Advocate appeared on behalf of the revisionist and argued that issue of notice in Form 49-A was mandatory and not discretionary in proceedings held that Section 122-B U.P.Z.A. and L.R. Act (hereafter the Act) and that if the notice was not issued in the prescribed form, the proceedings were rendered illegal and void. Sri Ram Prasad Singh and Sri Ram Surat Singh, Advocates appeared on behalf of opposite party and argued that notice in Z.A. Form 49-A was not mandatory and if the purpose of the notice was served by any other means and the party had put in appearance and also had not objected to the non-issue of the notice in Form 49-A, no prejudice was caused to the party and the proceedings could not be held to be illegal and void. 3. Learned counsel for the revisionist, relying on Tiwari v. Gaon Sabha, 1975 R.D. 192 argued that the proceedings under Section 122-B of the Act could only be initiated by issuing a notice in Form 49-A and there was no other way provided by the law to initiate the proceedings. He stated that in the said ruling the learned Member had clearly stated that the notice was mandatory and that if the notice was defective in the sense that it did not comply with the requirements of Rule 115-D, no order could be sustained on that basis. He further argued that in the ruling in Jagannath v. Gram Sabha, 1973 R.D. 254 this aspect of the matter had not been directly considered and the ruling was based on the considerations of equity. He said that even though it might be held that no prejudice was caused to the concerned party by the non-issue of notice in Form 49-A, it would not be contended that the proceedings as initiated and sustained were valid when put to the test of statutory provisions in this behalf. He said that even though it might be held that no prejudice was caused to the concerned party by the non-issue of notice in Form 49-A, it would not be contended that the proceedings as initiated and sustained were valid when put to the test of statutory provisions in this behalf. Further he argued that the notice to be given under Section 80 C.P.C. to the Government did not have a prescribed form and content and that was the reason why there are a number of rulings in order to define the scope, content and sufficiency of the notice to Government. According to him these rulings were not relevant in a situation in which a clear statutory provision existed and was not complied with, and was even disregarded by the concerned officer or authority. Further he contended that it was not a question that no prejudice was caused by non-compliance to the otherwise notified party but a question of the very maintainability and legality of the proceedings initiated and taken without issue of notice in the prescribed form. 4. Learned counsels, arguing in support of the view that notice in Z.A. Form 49-A was not mandatory and would not render the proceedings void, stated that the intention of Rule 115-D was that the opposite party should know specifically why it was being proceeded against and exactly what for. They stated that if the cause of action was communicated otherwise than through the prescribed Form, no prejudice was caused to the party, because the party was apprised or made knowledgeable why it was being proceeded against and what the cause of action was. It was also argued that, if no objection was raised to the non-issue of notice in Form 49-A and the party had joined issued before the Collector initiating the proceedings it was not open to the party to raise an objection later in revision or appeals, and it could be rightly inferred that the party was not prejudiced by the proceedings. On another aspect of the matter it was argued that the said Rule was not mandatory but directory and the intention of the legislation on this point was that the party who was being proceeded against should know precisely what the main facts and allegations were for purposes of proceeding under Section 122-B Z.A. and L.R. Act. On another aspect of the matter it was argued that the said Rule was not mandatory but directory and the intention of the legislation on this point was that the party who was being proceeded against should know precisely what the main facts and allegations were for purposes of proceeding under Section 122-B Z.A. and L.R. Act. It was stated before us that it was not the Form here that mattered but the content, and particularly the essential facts and allegations, which were to be notified to the opposite party. It was said that if it was found, that, when the proceedings were initiated, the opposite party was communicated in writing all the essential facts and allegations otherwise than in Form 49-A, and the party in consequence put in appearance and made no objection to non-issue of Form 49-A, the right view would be that the party had accepted the notice as it was and was not prejudiced by non-issue of the notice to it in the prescribed Form Learned Counsel cited Dhian Singh v. Union of India, A.I.R. 1958 S.C. 274 in which in head note (c) it was held in respect of Section 80 C.P.C. notice as follows:- "Though the terms of Section 80 are to be strictly complied with, it does not mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense. A little common sense must be imported in the notice under Section 80." The cited State of Madras v. C.P. Agencies, A.I.R. 1960 S.C. 1309 in which it was held as follows in respect of Section 80 C.P.C. :- "Section 80 is express, explicit and mandatory and admits of no implications or exceptions. The object of the section is manifestly to give the Government or the public officer sufficient notice of the case which is proposed to be brought against the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. In order to enable the Government of the public officer to arrive at a decision, it is necessary that it or he should be informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim is founded and the precise reliefs asked for. In order to enable the Government of the public officer to arrive at a decision, it is necessary that it or he should be informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim is founded and the precise reliefs asked for. Though the terms of this section are to be strictly complied with, that does not mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense." They said that in this ruling A.I.R. 1958 (S.C.) 274, (cited earlier) had been relied upon Further reference was made to Wallu Ram v. Union of India, A.I.R. 1961 Punj. 329 head note (b) which read as follows:- "The object of the requirement of a notice under Section 80 of the Code of Civil Procedure is to afford the defendant an opportunity to consider his position with regard to the claim, and this object is sufficiently satisfied if the notice informs the defendant generally of the nature of the suit intended to be filed and the relief sought to be claimed. Hence the mere fact that the notice does not give any details of the claim does not render it invalid if the notice sufficiently complies with the above requirements." They said that in this ruling it had been held that the mere fact that the notice did not give any details of the claim, did not render it invalid if it sufficiently informs the defendant generally of the nature the defendant generally of the nature of the suit intended to be filed and the relief sought to be claimed. In regard to the sufficiency of notice under Section 80 cited Herish Chand v. Union of India, AIR 1962 Alld. 307 in which it was held as follows:- "There could be no doubt about the identify of the cause of action mentioned in the notice and the plaint. Simply because of the incorrectness of the number of the railway receipt the cause of action could not be held to be different. In the ruling in Bhagwan Sri Krishana Ji Virajman Mandir Khanpur v. Chuttan Lal, A.I.R. 1963 Alld. Simply because of the incorrectness of the number of the railway receipt the cause of action could not be held to be different. In the ruling in Bhagwan Sri Krishana Ji Virajman Mandir Khanpur v. Chuttan Lal, A.I.R. 1963 Alld. 54 they said that it was laid down in respect of the notice under Section 106 of the Transfer of Property Act 1882 as follows:- "The Transfer of Property Act prescribed no form of notice nor any particular words. The object of the notice under Section 106 is to give the tenant sufficient time to vacate the premises and such a notice should be liberally construed. The real point in such cases is that the person on whom the notice is served should understand that his tenancy has been terminated and he is required to vacate at the end of the period of the tenancy. If the tenant attacks the notice on the ground of vagueness he must show that its defective language caused him to misunderstand its nature." "Where the notice given by the landlord said" or if you think that the tenancy commenced on some 'other date, you may vacate the land on the corresponding date. Held that the notice was not indefinite and vague and was valid." Another ruling cited before us is Amar Nath Dogra v. Union of India, A.I.R. 1963 S.C. 424. The head note (b) of the ruling reads as follows:- "Where there are several heads of claim of damages for the breach of contract against the Government, though they all arise out of a single contract then on a reasonable and proper construction of Section 80 Civil Procedure Code, the authority on whom the notice of the claim is served has a right to be informed what the claim of the party is in respect of each of the several heads. It is, no doubt, true that a notice under Section 80 is not a pleading and need not be a copy of the plaint and that no particular or technical form is prescribed for such a notice, still having regard to the object for which Section 80 has been enacted, the details which it contains should be sufficient to informs the party on whom it is served of the nature and basis of the claim and the relief sought. Admitting that a notice has to be interpreted not pedantically but in the light of common sense without one being hypercritical about the language still the question to be considered is whether in the notice there is substantial information conveyed on the basis of which the recipient of the notice could consider the claim of the would be plaintiff and avert the suit." Yet another ruling cited is The State of Andhra Pradesh v. G.V. Suryanarayana Garu, A.I.R. 1965 S.C. 11 in which criteria were laid down to see whether the provisions of the statute in respect of Section 80 C.P.C. notice had been complied with and it was contended that so long as the essential ingredients of a notice were communicated to the party, there was sufficient compliance of the requirements of Rule 115-D and incidental defects or errors had to be ignored. In the Ruling A.I.R. 1965 (Cal.) 191, they argued that it had similarly been laid down in respect of Section 80 C.P.C. notice that the nature of the suit intended to be filed is sufficiently indicated in the notice. Learned counsels for the opposite party have, thus, taken pains to establish that just as in the case of Section 80 C.P.C. notice, similarly in the case of a notice required to be given under Section 122-B of the Act and Rule 115-D of the Rules, it was sufficiency of the notice and not the form of the notice that mattered and that so long as such notice was sufficient, the proceedings could not be held to be illegal or not maintainable, particularly when no prejudice was caused to it by non-issue of notice in the prescribed form. 5. We would go to the language of the statute itself to see what the legislation intends in respect of issue of notice in Form 49-A under the provisions of Section 122-B of the Z.A. and L.R. Act. 5. We would go to the language of the statute itself to see what the legislation intends in respect of issue of notice in Form 49-A under the provisions of Section 122-B of the Z.A. and L.R. Act. Sub-section (3) of Section 122-B reads as follows:- "Where the Collector is of opinion that any property referred to in sub-section (1) has been damaged or misappropriated or any person is in occupation of any land referred to in that sub-section in contravention of the provisions of this act, he shall issue notice to the person concerned to show cause why compensation for damage or misappropriation not exceeding the amount specified in the notice be not recovered from him, or as the case may be, why he should not be evicted from such land." It is clear that the Collector is required to issue a show-cause notice to the person concerned and the amount of compensation for damage or misappropriation is to be specified in the notice. In the case of wrongful occupation the notice will state why he should not be evicted from such land. Sub-section (4), 4-A, and 4-B deal with the situations arising in consequence of the show cause notice. Sub-section (5) lays down explicitly that Rules 115-H of the U.P.Z.A. and L.R. Rules, 1952 shall have retrospective effect from the commencement of Z.A. and L.R. Act, 1950, as amended by U.P. Act No. XXXV, 1976. In sub-rule (1) of Rule 115-D, the Collector is required to call upon the person concerned through notice in Z.A. Form 49-A to refrain from causing damage or misappropriation, to repair the damage or make good the loss or remove wrongful occupation and to pay damages or to do or refrain from doing any other thing as the exigencies of the situation may demand or to show-cause against it in such time not exceeding 15 day as may be specified in the notice. In sub-rule (2) the Collector can make such inquiry as he deems proper before issuing a notice under sub-rule (1). In sub-rule (2) the Collector can make such inquiry as he deems proper before issuing a notice under sub-rule (1). It is clear that the Collector may, if necessary, make an inquiry for the purpose of issuing the notice in Form 49-A. This sub-rule specifies the following points on which information is to be collected in the course of inquiry:- "(a) Full description of damage or misappropriation caused or the wrongful occupation made, with details or village, Mohalla or ward, plot number, area, boundary, property damaged or misappropriated and market value thereof; (b) Full address along with father's name of the person responsible for the damage, misappropriation of wrongful occupation; (c) Period of wrongful occupation, damage or misappropriation, class of soil of the plot number involved and hereditary rates applicable to them; and (d) Value of the property damaged or misappropriation calculated at the prevailing market rate in the locality." Rule 115-G, it is laid down:- "If the person concerned does not make the payment of the aforesaid amount within a period specified in the notice in Z.A. Form 49-A, possession of the land shall be delivered to the Land Management Committee or the Local authority as the case may be, together with the crop." It is clear from this rule that the delivery of possession is contingent on the issue of notice in Z.A. Form 49-A. 6. We find nothing in these relevant provisions of the Act and the rules which gives any discretion to the collector in the matter of issuing a notice in Form 49-A, prescribed under Rule 115-D. Here not only the form but contents, of the form have been specified. The statute lays down not only what the content of the notice has to be, but also what the form of the notice has to be. The intention of the legislation on this point has not been left in doubt to be inferred from other provisions of the statute or is any implications or in indirect indications. There is nothing in the wording to show that the provision is not mandatory and leaves anything to discretion or even chance. The duty of the Collector is clearly and unambiguously laid down. Rule 115-D is not a mere direction or regulation for the guidance of the collector. There is nothing in the wording to show that the provision is not mandatory and leaves anything to discretion or even chance. The duty of the Collector is clearly and unambiguously laid down. Rule 115-D is not a mere direction or regulation for the guidance of the collector. It lays down the only way in which proceedings have to be initiated under Section 122-B. Whether a notice in Z.A. Form 49-A, properly filed in all respects as required by Rule 115-D, has been issued or not is material in determining the maintainability of action under Section 122-B against the alleged offending party. 7. All the rulings cited about Section 80 C.P.C. and the one regarding Section 106 of the Transfer of Property Act would not apply to the position with regard to the issue of notice under Section 122-B of the Z.A. and L.R. Act, because in the former acts the form of the notice has not been prescribed, though essential contents of the notice have been laid down. Thus there is a flexibility about the shape or from which this notice could take and hence the necessity of ruling sin order to define the sufficiency and scope of notice required to be given under Section 80 C.P.C. to government or a public officer acting in his official capacity. Under Section 122B and rule 115-D, the issue of show cause notice in the prescribed form is the only way of instituting proceedings against a person who encroaches upon or causes damage to the property of the Gaon Sabha as defined in sub-section (1) of Section 122-B. The inquiry that may be held by Collector under sub-rule (2) of Rule 115-D is also only for the purpose of the notice. The information obtained through the inquiry is to be utilized in filling up Form 49-A. It is the content of Form 49-A which would which would be the subject matter of the show-cause notice and no cognisance could be taken of such information, if it is conveyed to the alleged offending party otherwise than in Form 49-A. 8. The information obtained through the inquiry is to be utilized in filling up Form 49-A. It is the content of Form 49-A which would which would be the subject matter of the show-cause notice and no cognisance could be taken of such information, if it is conveyed to the alleged offending party otherwise than in Form 49-A. 8. The argument that the party proceeded against under Section 122-B though not issued notice in Form 49-A was acquainted with or otherwise informed of the allegations against it before or at the outset of, or in some stages after the start of the proceedings, cannot validate the proceedings taken by the Collector under Section 122-B. Nor the fact that, though Form 49-A was not issued, the party contested, can serve to validate the proceedings. The intention of the provisions of the statute in this behalf is very clear and the violation of these mandatory proceedings cannot be justified on such grounds. If an allegation of illegality is made against a party and it is notified in a manner not laid down in the law, the party, may appear in order to protect its interest, but its appearance and its interest, but its appearance and its contesting the case cannot confer any legitimacy on the proceedings. 9. It has been argued that when a party has put in appearance, though the notice in Form 49-A, was not issued to it and it did not raise any objection about non-issue of notice to it in those proceedings, it cannot raise the objection at a letter stage of the proceedings or subsequently in revision. We are afraid that this does not overcome the infirmity of non-compliance with the mandatory requirements of the law and the relevant rule. Such arguments only seek to justify the indifference, disregard or ignorance of the mandatory provisions on the party of the officer concerned, and aim at conferring legality and propriety on proceedings which otherwise are manifestly irregular and improper. There is no provision in the Act and the Rules which can justify the no-prejudice caused approach or appearance-put-in-approach. It is essentially a question of the maintainability of the proceedings under Section 122-B. If the proceedings have not been properly initiated as laid down in Section 122-B and Rule 115-D, these are not maintainable and cannot be rescued by this kind of ultra vires approach to the issue. It is essentially a question of the maintainability of the proceedings under Section 122-B. If the proceedings have not been properly initiated as laid down in Section 122-B and Rule 115-D, these are not maintainable and cannot be rescued by this kind of ultra vires approach to the issue. An issue of maintainability of the proceedings and their validity raises a question of jurisdiction being rightly or wrongly exercised. And this issue can be raised at any stage of the proceedings. 10. We have not been shown a single ruling where the law prescribed a form for giving notice but which was not used for initiating proceedings, in which it may have been held that the issue of the notice in the prescribed form did not matter, so long as that party proceeded against, was acquainted with or made aware of the allegations, either at the outset or in the course of the proceedings. 11. We may now refer to the rulings on the issue under consideration. (1) One view of the matter is expressed by Sri B.K. Misra, Member, in Jagannath v. Gram Sabha, 1973 R.D. 254:- "The petitioner put in his objection and led evidence. He was not in doubt as to the nature of the proceedings against him. Therefore, his two-fold objection appears to be an after thought and has been raised only in arguments before the Board." The learned member held that the petitioner was not prejudiced by non-issue of notice in Z.A. Form 49-A(2). Another view of the matter is expressed in Girand v. Gaon Sabha, 1974 R.D. 326 by the learned Member, Sri Saiyid Husain as follows:- ".....I hold that a notice in Form 49-A must give the details provided under Rule 115-D of the U.P.Z.A. and L.R. Rules, the notice in hand is clearly vague and none of the above ingredients are contained in it. This notice is mandatory and the provisions of Rule 115-D are equally essential. Its non-compliance had rendered the entire proceedings illegal and invalid in the eye of law." (p. 329). In this case the contention of the aggrieved party was that the notice in Form 49-A was incomplete and did not fulfil the requirement provided under Rule 115-D as no plot number or Rasta number had been given in the notice and it was vague. In this case the contention of the aggrieved party was that the notice in Form 49-A was incomplete and did not fulfil the requirement provided under Rule 115-D as no plot number or Rasta number had been given in the notice and it was vague. It was also contended that the sketch map placed on the record of the trial court, was not sent along with the notice nor was in specific, so as to enable the revisionists to know the exact location of the land. (3). A similar view of the matter is expressed in Tiwari v. Gaon Sabha, 1976 R.D. 192 by the learned Member Sri S. Shamshad Ahmad as follows:- "The notice in Form 49-A must contain the details provided under Section 115-D and if any of the four ingredients which have to be compulsorily incorporated in the notice is missing it will be perfectly legitimate to infer that the provisions of Rule 115-D have not been complied with and that the non-compliance of these provisions will certainly render the entire proceedings illegal and invalid in the eyes of law. In the instant case the notice in Form 49-A is clearly defective in so far as the name, full address, and parentage of the persons wrongfully occupying the Gaon Sabha land have not been given in the notice. Obviously, therefore, no order of ejectment can be sustained when the mandatory notice is so blatantly defective." (read Rule). In this ruling notice in Form 49-A was issued but one of the four ingredients provided in Rule 115-D was missing and it was held that non-compliance rendered the proceedings illegal and invalid. It would appear from this ruling also that the learned Member held not only was the issue of notice in form 49-A mandatory, but even this notice in this prescribed form would be invalid if it omitted any of the four ingredients required to be included in it under Rule 115-D. 12. The law on the subject, in our view, does not contemplate that the revenue courts should judge whether notice in Form 49-A is to be issued or not; or whether it non-issue has been made good otherwise. The law on the subject, in our view, does not contemplate that the revenue courts should judge whether notice in Form 49-A is to be issued or not; or whether it non-issue has been made good otherwise. The provisions in this behalf are mandatory in character and give no discretion to the Collector to adopt alternative means for initiating proceedings or to any court to legitimise proceedings, simply because the parties have put in appearance, or raised no objection. Rather, the courts have to see whether the notice in Form 49-A has been properly issued or not. Since there is a provision for inquiry to be made by the Collector, if he considers it necessary under sub-rule(2) of rule 115-D, there is expected to be specificity in the contents and the allegations contained in the notice in Form 49-A. The inquiry is to be utilised for purpose of issuing the prescribed notice, if the notice is found to be necessary. It is only this notice that can be discharged by the Collector under sub-section 4-A of Section 122-B or made the basis of proceedings against him to protect the Goan Sabha property. 13. We, therefore, are of the view that notice in Z.A. Form 49-A is mandatory in proceedings under Section 122-B of U.P.Z.A. and L.R. Act and Rule 115-D of the U.P.Z.A. and L.R. Rules and that non-issue of this notice renders the entire proceedings illegal and void. 14. The reference is thus answered.