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2013 DIGILAW 295 (ALL)

RAM PRATAP v. DEPUTY DIRECTOR OF CONSOLIDATION

2013-01-24

RAN VIJAI SINGH

body2013
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri K.N.Tripathi, learned Senior Counsel assisted by Sri D.K.Srivastava, learned counsel for the petitioner and Sri Sanjay Goshwami, learned Additional Chief Standing Counsel appearing for the State respondents. 2. The counsel for the parties agreed that on the legal premises, this writ petition may be decided finally without inviting any counter-affidavit. With the consent of learned counsel for the parties, the writ petition is taken up for final disposal. 3. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 26.10.2012 passed by the Additional District Magistrate City/Deputy Director of Consolidation in Reference No. 58/1 of 2012-2013 filed under Section 48 (3) of U.P. Consolidation of Holdings Act, 1953 (in short ‘the Act’). By the impugned order, the reference made under sub-section (3) of Section 48 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) has been allowed and the name of the petitioner has been expunged from the revenue record holding the earlier entry in the name of the petitioner to be forged one. 4. The facts giving rise to this case are that it appears Village in question1 was notified under sub-section (2) of Section 4 of ‘the Act’. The father of the petitioner filed an objection under Section 9 A of the Act for recording his name over 16 bigha of land before the Consolidation Officer (herein after referred to as C.O.) The aforesaid objection was allowed by the C.O. on 25.3.1982. No appeal was filed against the aforesaid judgment. Thereafter, petitioner’s name was recorded that in the form 23 but some how it was not recorded in the form 41 and 45. It is contended that the petitioner could not file any application under Rule 109 of the U.P. Consolidation of Holding Rules, 1954 (hereinafter referred to as the Rules) within the reasonable time. However after a long gap, an application under Rule 109 of the Rules was filed which has been rejected by the Consolidation Officer on 24.1.2012. The petitioner, herein, has filed an appeal. The said appeal is still pending. 5. It is contended that pending appeal, a complaint was filed and the same was enquired by the City Magistrate. However after a long gap, an application under Rule 109 of the Rules was filed which has been rejected by the Consolidation Officer on 24.1.2012. The petitioner, herein, has filed an appeal. The said appeal is still pending. 5. It is contended that pending appeal, a complaint was filed and the same was enquired by the City Magistrate. Thereafter, after getting report of Assistant Consolidation Officer (in short A.C.O), the C.O. and Settlement Officer Consolidation (in short S.O.C.) the matter was referred to the Deputy Director of Consolidation (in short D.D.C.) under sub-section (3) of Section 48 of the Act. The D.D.C., in turn, taking note of the reports has passed the impugned order. In the submission of Sri Tripathi, order impugned is vitiated for the following reasons : (1) Because the petitioner was neither noticed nor heard at the time of making reference which is contrary to the provisions contained under sub-section (3) of Section 48 of the Act. (2) Because the reference was decided under sub-section 1 of Section 48 which also requires the hearing of the affected parties before passing the final order in the reference therefore order impugned suffers from breach of principles of natural justice. (3) Because the order impugned is without jurisdiction as once the petitioner’s appeal was pending against the order of C.O. rejecting the application under Rule 109 of the Rules dated 24.1.2012 and dated 25.3.1982 passed in a proceeding under Section 9A of the Act which was never challenged, there was no occasion to entertain the complaint and initiate the proceeding of reference. 6. Refuting the submissions of learned counsel for the petitioner, Sri Sanjay Goshwami, learned Additional Chief Standing Counsel appearing for State respondents has very vehemently contended that the land in question was declared as reserve forest vide the notification dated 25th August, 1950 and once it was declared as a reserve forest, in view of Section 5 of Indian Forest Act, 1927 (in short ‘ the Forest Act’), no new right shall accrue over that land in question. He has also contended that the order passed by the C.O. is without jurisdiction and it will confer no right in view of Section 5 of Indian Forest Act. He has also contended that the order passed by the C.O. is without jurisdiction and it will confer no right in view of Section 5 of Indian Forest Act. He has further contended that right and title with respect to the forest land can only be seen by the Forest Settlement Officer under the provisions of the Forest Act and the provisions of other statute are not attracted. He has also invited attention of the Court towards Section 11-C of the Act, according to which, it is obligatory on the consolidation authorities either dealing with the objection under Section 9-A, Appeal under Section 11 or Revision under Section 48 of the Act to record the name of the State if the land is vested in the State or Gaon Sabha even if no objection has been filed. He has also contended that there are numerous decisions of the Apex Court wherein it is held that when the entry is forged, there is no need to provide any opportunity of hearing to the otherside. He has also contended that opportunity of hearing is not a ritual which should be offered in each and every case. It is well-settled that even after giving an opportunity of hearing, if the same result is likely to come and the order has been passed without affording an opportunity of hearing, in that eventuality, the order would not be vitiated. 7. I have heard learned counsel for the parties, considered their submissions, and perused the record. 8. For appreciating the controversy, the provisions contained under sub-section (3) and sub-section (1) of Section 48 would be necessary to be looked into which is reproduced hereinunder : (3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1). (1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order (other than an interlocutory order) passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit. 9. From going through the provisions contained under sub-section 3 as well as sub-section 1 of Section 48 of the Act it would appear that any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (3), meaning thereby any authority subordinate to the Director of Consolidation may make reference to the Director of Consolidation only after providing an opportunity of hearing to the concerned parties. Further it also provides that the reference is to be decided under Sub-section 1 of Section 48 according to which the D.D.C. may pass final order on the reference only after allowing the parties concerned an opportunity of being heard. Meaning thereby on both the occasions (i) at the time of making reference under sub-section 3 and while deciding the reference also under sub-section 1 of Section 48 of the Act, the Courts/authorities, empowered to make reference and decide the reference, are under an obligation to provide an opportunity of hearing to the affected parties. 10. The learned Additional Chief Standing Counsel, while defending the order passed by the D.D.C., has submitted that after notification under Section 4 of the Forest Act, the land shall vest in the forest as a reserve land and no right shall be acquired in or over the land comprised in such notification except by the succession or under a grant or contract in writing made or entered into or on behalf of the Government or some person in whom such right was vested when notification was issued. In his submissions, the order passed by the Consolidation Officer in a proceeding under Section 9-A was without jurisdiction, therefore even if the D.D.C. has erred in passing the impugned order without affording an opportunity of hearing that should not be interfered with under Article 226 of the Constitution of India. 11. On being confronted as to whether these points have been raised before the Consolidation Authorities, the learned Additional Chief Standing Counsel from the perusal of the impugned order could not show the Court the defence of the State as has been argued before this Court. Here in this case, the impugned order has been passed under a different statute i.e. U.P. Consolidation of Holdings Act, 1953, therefore I confine myself only on the issue involved in the present case on the basis of the pleading of the parties and the procedure adopted by the consolidation Courts. The order impugned has been passed, in a reference proceeding under sub-section 3 of Section 48 of the Act on the report of the City Magistrate and the Consolidation Authorities under sub-section 1 of Section 48 of the Act, as I have noticed above under the relevant provision, the opportunity of hearing is must on both the occasions i.e. prior to making the reference or while passing the final order on the reference. The learned Additional Chief Standing Counsel could not show and in fact he conceded to the extent from the perusal of the impugned order and the report on which, reference was made that at any point of time either at the time of making reference or at the time of final judgment, the petitioner was afforded an opportunity of hearing. I have also seen the contents of the order impugned through which cognizance has been taken by the D.D.C. which reads as under : eSus uxj eftLVªsV dh tkap vk[;k ,oa l0v0p0@p0v0@c0v0p0 dh vk[;kvksa dk vuq’khyu fd;k rFkk i=koyh ij miyC/k lk{; dk laKku fy;kA The report submitted by City Magistrate Agra dated 23.8.2012 and the other reports submitted by the Consolidation Authorities or on the record of the writ petition, from the perusal of the same, it transpires that even while preparing the report, no opportunity was given to the petitioner. 12. 12. It is well-settled that ‘if a Statute provides to do a thing in a particular manner that thing is to be done in a particular manner, and other manner and procedure is ordinarily not permissible’. (Vide Taylor v. Taylor, (1876) 1 Ch.D. 426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527 ; Haresh Dayaram Thakur v. State of Maharashtra and others, (2000) 6 SCC 179 ; Dhanajaya Reddy v. State of Karnataka etc. etc., (2001) 4 SCC 9 ; Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and others, (2002) 1 SCC 633 ). 13. It is also well-settled that if any thing has not been done in the manner provided for under the Statute and the Statute has provided a consequence for non-performance of such act as provided for, then those provisions are mandatory and not directory. This Court in the case of Smt. Dukhani and another v. State of U.P. and others, passed in Writ Petition No. 42057 of 2012 has held that the provisions contained under sub-Section 1 and sub-section 3 of Section 48 are mandatory in nature and unless the procedure as prescribed under the statute is followed, that order would be void order. 14. The Apex Court, in the case of D.K.Yadav v. J.M.A. Industries Ltd., 1993 SCC 259 , held that no man should be condemned unheard intends to prevent the authority from acting arbitrarily effecting the rights of the concerned person.............. It is fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. 15. In Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 : (1978) 2 SCR 272 , the Apex Court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. 16. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. 16. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (1978) 2 SCR 621 , the Apex Court held that the procedure prescribed must be just, fair and reasonable even though there is no specific provison 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. 17. It may be noticed that here, the Consolidation authorities have submitted various reports and passed the order under the Act, therefore they had to proceed strictly in accordance with the provisions contained under the Act for taking decision under a particular section. Here the relevant section provides that while discharging the power either under sub-section 3 or sub-section 1 of Section 48 an opportunity of hearing to affected party is necessary and it was incumbent upon the consolidation authorities to provide the same. 18. So far as the submissions of learned Additional Chief Standing Counsel with respect to the effect of notification under Section 4 of the forest Act is concerned, suffice it to say, since the order impugned was passed under the particular Act that has to be tested under that Act particularly in the circumstances when no such defence was taken before the consolidation authorities. 19. Here in this case as has been noticed the reference has been made pending appeal against the order dated 24.1.2012 passed by the C.O. and the order dated 25.3.1982 by same authority allowing the objection of the petitioner under Section 9A of the Act, had the opportunity been offered to the petitioner either before making the reference or at the time of passing final order in the reference, these grounds could have been brought in the notice of the consolidation authorities and in not doing so, consolidation authorities/Courts have made the decision making the process defective which cannot be sustained in the eye of law. 20. 20. In view of foregoing discussions, the impugned order dated 26.10.2012 passed by the learned D.D.C. in Reference No. 58/1/2012-13 cannot be sustained in the eye of law. 21. In the result, the writ petition succeeds and is allowed. The impugned orders dated 26.10.2012 passed by learned D.D.C. in Reference No. 58/1/2012-13 is hereby quashed. The parties are free to proceed in accordance with law. —————