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1994 DIGILAW 268 (PAT)

Sheoji Mishra v. State of Bihar

1994-08-08

AFTAB ALAM, B.L.YADAV

body1994
Judgment B.L. Yadav, J. Whether a parcha can be issued to the respondents 7 to 10, under the Bihar Privileged Persons Homestead Tenancy Act, 1947, and whether jamabandi created in favour of the petitioner on the basis of valid settlement can be cancelled without following the procedure are the short questions involved in the present petition filed by the petitioner under Article 226 and 227 of the Constitution seeking the prayer for issuance of writ of certiorari quashing the order dated 23.12.92 (Annexure-4) passed by Respondent no. 4. 2. The portrayal of the essential facts are these. On the basis of an approval made by the District Magistrate Bhojpur in settlement case no. 19 of 1966-67, an area of 28 decimals of land situate in khata no. 30, plot no.275 in Village Nuaon, within Buxar Anchal of then district Shahabad (now district Buxar) was settled with the petitioner by order dated 26.12.67 passed by respondent no. 4. The settlement followed by delivery of possession. Just with a view to harass the petitioner an application was filed by one Bal Govind Sah (father of respondents 5 and 6) who died later on and was substituted by respondents 5 and 6. 3. The respondents 8 to 10 alleging to be landless persons filed an application before Respondent no. 3 alleging that they have kept cattle (sic) and cattle-shed and a hut over the land since much before which is in their possession but settlement in favour of the petitioner was illegal and land may be settled with them and settlement in favour of the petitioner be cancelled (Vide Annexure-3 to the petition). 4. On that application (Annexure-3) filed by the contesting respondents 8 to 10 a report was called for from the Anchal adhikari, who directed the Halka Karmchari to furnish a report, which was furnished. Thereafter the Anchal adhikari passed an order on 18th December, 1992 that he has perused the report of the Halka Karmchari which indicates that the respondents 8 to 10 were landless persons and covered within the definition of 'privileged persons' as defined under section 2 (i) of the Bihar Privileged Persons Homestead Tenancy Act, 1974 (for shor the Act). Thereafter the Anchal adhikari passed an order on 18th December, 1992 that he has perused the report of the Halka Karmchari which indicates that the respondents 8 to 10 were landless persons and covered within the definition of 'privileged persons' as defined under section 2 (i) of the Bihar Privileged Persons Homestead Tenancy Act, 1974 (for shor the Act). Thereafter the Anchal adhikari, Buxar directed that inspite of the order dated 23.12.1992 purcha has not been issued as parcha has to be issued in favour of the contesting respondents as they have raised a construction on the land in dispute. The Anchal adhikari directed that the parcha be prepared by 2nd January of 1993. Against this order the present petition has been filed. 5. Learned counsel for the petitioner urged that no opportunity of hearing was given to the petitioner as his legal rights were affected and otherwise also Rule 5 of the Act, makes it obligatory on the part of the Collector or any other Inquiring Officer, to issue a notice in "Form-F" to all the interested party intimating the date on which the inquiry shall be made and directing the party to produce all the evidence in their possession in support of their claim. Thereafter the Collector, the Inquiring Officer has directed to record evidence and after hearing the parties shall pass an order. But the procedure was not followed. The impugned order is manifestly erroneous. 6. Learned counsel for the respondent on the other hand refuted the submissions of the learned counsel for the petitioner and contended that the petitioner was quite aware about the impugned order and about the proceedings in the case and he was served with a notice also. Hence there was no violation of principles of natural justice and there is no error in the impugned order. 7. Having scrutinised the submissions of the learned counsel for the parties the point for determination is as to whether the petitioner must be afforded an opportunity of hearing and whether principles of natural justice have been violated. Suffice is to say that the land was initialy settled with the plaintiff and if any basgit parcha is fissued in favour of the contesting respondents that would amount to curtailment of the petitioner's legal right. In such matter it is well settled that the principles of natural justice (AUDI ALTERM PARTEM RULE) must be followed. Suffice is to say that the land was initialy settled with the plaintiff and if any basgit parcha is fissued in favour of the contesting respondents that would amount to curtailment of the petitioner's legal right. In such matter it is well settled that the principles of natural justice (AUDI ALTERM PARTEM RULE) must be followed. This rule means that no one shall be condemned unheard. The corollary is that the person affected must be given a reasonable opportunity of hearing before passing the order. (See. Errington V. Minister of Health (1935) IKB 249, John V. Rees (1970) Ch. D. 345; R.V. North London Metropolitan Magistrate, Exparte Hayword (1973)3 All E.R. 50. This principle applies to the quasi judicial proceeding as well as administrative action. In Cleveland Board of Education V. James Louder Mill (470 U.S. 532=84 L. Ed. 2 Nd. 494 at page 503) it was held as follows :- "the essential principle of due process is that a deprivation; life, liberty or property be preceded by notice and opportunity of hearing appropriate to the nature of case (See Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306=94 L. Ed. 865). We have described that the root requirement of the due process clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant interest and property." In Ravi S. Nail v. Union of India J.T. 1994 (1) 551. It was held by the Apex Court as follows :- "The principles of natural justice have an important place in modern Administrative Law. They have been defined to mean fair play in action. "See Smt. Meneka Gandhi v. Union of India ( 1978 (2) SCR 621 at page 676). As laid down by this Court, they constitute the basic elements of a fair hearing having their roots in the innate sense of men for fair play and justice which is not the reserve of any particular race or country but is shared in common by all men. (Union of India v. Tulsi Ram 1985 Suppln (2) SCR 131 at page 225). An order of an authority exercising judicial or quasi judicial functions passed in violation of principles of natural justice is procedurally ultravires and therefore suffers from a jurisdictional error. (Union of India v. Tulsi Ram 1985 Suppln (2) SCR 131 at page 225). An order of an authority exercising judicial or quasi judicial functions passed in violation of principles of natural justice is procedurally ultravires and therefore suffers from a jurisdictional error. That is the reason why in spite of the finality imparted to the decision of the Speaker/Chairman by paragraph 6(1) of the Xth Schedule, such a decision is subject to judicial review on the ground of non-compliance of rules of natural justice. But it must be borne in mind that "they are not immutable but flexible", and they are not cast in rigid mould and they cannot be put in a legal strait-jecket' whether the complaince of natural justice has been complied with or not has to be considered in the context of the facts and the circumstances of a particular case." See Professor Wade in his administrative Law, Sixth Edition page 530. 8. Apart from the aforesaid principles indicated that opportunity of hearing is must in cases affecting rights of person in property. The provisions of Rule 5 of the Rules are mandatory in nature which is to be noticed that all the sub-rules of Rule 5 start with the word shall, which means must and not may. Normally in respect of an authority passing an order or a court 'may' word is used to signify respect to the court, but the legislature wanted that the matter be not left for the Court for interpretation. Consequently the word 'shall' has been used and all the sub-rules of Rule 5 under the circumstances of the case are mandatory and there is no escape from it. In Rajeshwar Prasad Vs. the State of Bihar (1990 (i) PLJR 35) it was held that notice in Form-F has to be issued to all the parties intimating the date on which the proposed 9. In the present case also from perusal of the impugned order it appears that the petitioner was not afforded any opportunity of hearing. Nothing has been stated in the impugned order that notices were served. Consequently the principles of natural justice require and particularly the provisions of Rule 5 of the Rules require that opportunity must be afforded to the petitioner to lead evidence and to be heard before an order could be passed. 10. Nothing has been stated in the impugned order that notices were served. Consequently the principles of natural justice require and particularly the provisions of Rule 5 of the Rules require that opportunity must be afforded to the petitioner to lead evidence and to be heard before an order could be passed. 10. It is, however, made clear that the Halka Karmchari and the Anchal adhikari had submitted a report about the possession and nature of the dispute and the same is on the record of this petition as a part of Annexure-4 (page 20) and has been perused by the parties. It shall not be necessary to issue any other report from Halka Karmchari or from the Anchal adhikari or any other authority. From those inspection notes and other evidence it is proved that the contesting respondents were privileged persons within the meaning of section 2 (i) of the Act, and that finding remains undistur bed. II. As the opportunity of hearing and to lead evidence was not afforded to the petitioner, there is no option but to hold that the impugned order is manifestly erroneous. Conspectus of the aforesaid discussion is that the petition succeeds and the same is allowed and the impugned order dated 23.12.1992 (Annexule-4) is quashed. 12. The Collector or the Inquiring Officer is directed to decide the matter again in view of the observations made above, within a period of three months from the date of receipt of the certified copy of' this order, after affording opportunity to the petitioner to lead evidence in his support and to afford opportunity of hearing the contesting respondents and to lead evidence and they shall be also heard before any order is passed. There shall be no order as to costs. Application allowed.