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2013 DIGILAW 1016 (ALL)

Mamta Devi and Another v. State of U. P. and Others

2013-04-03

RAN VIJAI SINGH

body2013
Ran Vijai Singh, J.— Heard Sri C.V.S. Raghuvansi, learned counsel for the petitioners, learned Standing Counsel appearing for the State-respondents and Sri M.N. Singh, learned counsel for the Gaon Sabha. Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the order dated 19.1.2009 passed by the respondent no. 3 expunging the revenue entries in favour of the petitioners over gata no. 264/2 and 264/5 situated in village Chakmani Rathunathpur, Tehsil Dhampur District Bijnor. The aforesaid order appears to have been passed in a proceeding under section 33/39 of the U.P. Land Revenue Act, 1901. Sri Raghuvansi submits that the entire proceeding is ex parte as the petitioners were neither noticed nor heard, therefore, they could not challenge this order earlier. It has also been submitted that the petitioners are totally illiterate persons and can only put their thumb impression. Therefore, being unaware of the proceeding, nothing could be done till date. Learned counsel for the Gaon Sabha and learned Standing Counsel submit that the order is revisable and the petitioners may file revision against the said order. In their submissions, the writ petition should be dismissed on the ground of alternative remedy. On being confronted as to whether, from the perusal of the impugned order, learned counsel for the respondents can point out that the said order has been passed in conformity with the principle of natural justice, both the counsel appearing for the respondents could not show from the order that the order impugned has been passed after affording opportunity of hearing. The Apex Court in Whirlpool Corporation Vs. Registrar of Trade Marks 1998 (8) SCC, has observed that the alternative remedy is not absolute bar in entertaining the writ petition, provided the order is without jurisdiction or it has been passed in violation of principles of natural justice. Here, the impugned order has been passed by the authority competent without affording an opportunity of hearing, therefore, the same is vitiated. In the case of D.K. Yadav Vs. J.M.A. Industries Ltd., (1993) 3 SCC 269, the Apex Court observed that an order which involves civil consequences, must be just, fair, reasonable, unarbitrary and impartial and meet the principles of natural justice. In State of W.B. Vs. In the case of D.K. Yadav Vs. J.M.A. Industries Ltd., (1993) 3 SCC 269, the Apex Court observed that an order which involves civil consequences, must be just, fair, reasonable, unarbitrary and impartial and meet the principles of natural justice. In State of W.B. Vs. Anwar Ali Sarkar, 1952 SCR 284 : AIR 1952 SC 75 : 1952 Cri LJ 510; per majority, a seven judge Bench held that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi Vs. Union of India AIR 1978 SC 597 another Bench of seven judges held that the substantive and procedural laws and action taken under them will have to pass the test under article 14. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of natural justice. Same view has been reiterated in the cases of Canara Bank Vs. V.K. Awasthy 2005 (6) SCC 321 ; Bidhannagar (Salt Lake) Welfare Assn. Vs. Central Valuation Board and others, (2007) 6 SCC 668 ; and Devdutt Vs. Union of India and others, 2008 (3) ESC 433 (SC). The basic idea of observing the principles of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. V.K. Awasthy 2005 (6) SCC 321 ; Bidhannagar (Salt Lake) Welfare Assn. Vs. Central Valuation Board and others, (2007) 6 SCC 668 ; and Devdutt Vs. Union of India and others, 2008 (3) ESC 433 (SC). The basic idea of observing the principles of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The aforesaid decisions still hold field and have been followed in numerous cases, decided thereafter, which need not to detailed here. Here in the present case it is apparent on the face of record that no opportunity was given to the petitioner before passing the impugned order and the same has been passed taking note of the decision of the Apex Court in the case of Hinch Lal Tiwari Vs. Kamala Devi and Others (2001) 6 SCC 496 . However, considering the facts and circumstances of this case, since the impugned order has been passed way back in the year 2009, the petitioners are provided post decisional hearing, which is well recognised principle under the judicial process, in view of the decision of the Apex Court in the case of Maneka Gandhi Vs. Union of India, AIR 1978 SC 597 , Union of India Vs. Tulsi Ram Patel 1985 (3) SCC 398 , I.J. Rao Assistant Collector of Customs Vs. Bibhuti Bagh 1989 (3) SCC 202 , Canara Bank Vs. V.K.Awasthi 2005 (6) SCC 321 , Muzeeb Vs. Deputy Director of Consolidation and others 1996 (87) RD 66 and Chaturgun Vs. State of U.P. 2005 (2) AWC 1256 . In Chaturgun's case following observation has been made by the court: " However, if entry is expunged or any order is passed without hearing the person affected then he is entitled to file an application for post decisional hearing and recall of the order before the Court/Authority which pass the exparte order if such an application is filed then the Court/Authority concerned shall hear the applicant and in case it comes to the conclusion that the earlier order is not correct then the said order shall be set aside. In such a situation, it is not necessary to first set aside the order and then hear the party concerned." For that purpose, the petitioners are at liberty to file an appropriate application for recall of the impugned order before the Sub Divisional Officer concerned, along with a certified copy of the order of this Court within a period of three weeks from the date of receipt of certified copy of the order of this Court. After receipt of the petitioners' application, the Sub Divisional Officer shall fix a date and on the next date fixed, the petitioners be supplied copy of the notice containing reasons for cancellation of lease/expuntion of the petitioners names from the revenue records. Within a period of six weeks from the date of receipt notice, i.e., the date fixed for service of notice, the petitioners shall file their reply along with supporting material on which reliance is placed in support of the case and thereafter, the Sub Divisional Officer, after providing opportunity of hearing to all concerned, shall take final decision by passing a reasoned speaking order. Till the decision is taken on the petitioners' recall application, in case the order dated 19.1.2009 has not been given effect to, the same shall not be given effect to and the petitioners, who according to the learned counsel for the petitioners are in possession over the land in dispute, shall not be dispossessed by the respondents. It is also provided that in the meantime, neither any third party right shall be created nor the land shall be used for other than agricultural purpose. With the aforesaid observation/direction, the writ petition is disposed of. _____________