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2017 DIGILAW 816 (ALL)

RINKU SINGH v. STATE OF U. P.

2017-03-22

RAN VIJAI SINGH, VINOD KUMAR SRIVASTAVA III

body2017
JUDGMENT By the Court.—Counter-affidavit filed by the State-respondents is not on record. For the purpose of the record, learned Standing Counsel has provided another copy of the counter-affidavit which is taken on record. 2. We have heard Shri S.K. Singh Paliwal, learned counsel for the petitioner and learned Standing Counsel for the State-respondent. 3. By means of this petition, prayer has been made to issue a writ of certiorari quashing the order dated 11.2.2011 passed by the Tehsildar, Tehsil Budhanpur, District Azamgarh by which the income certificate dated 13.7.2010 regarding annual income of the petitioner to the tune of Rs. 19,200/- has been cancelled. Petitioner has prayed for writ of mandamus commanding the respondents not to give effect to the order dated 11.2.2011 passed by the Tehsildar, Tehsil Budhanpur, District Azamgarh and further permit the petitioner to continue on the post of Aganbari Karyakatri at Vaishpur Centre, Azamgarh. 4. The facts of this case in brief are that it appears that petitioner had applied for obtaining income certificate for the purpose of her appointment on the post of Aganbari Karyakatri at Vaishpur Centre, Azamgarh. After some time, income certificate was issued to the petitioner mentioning her income Rs. 19,200/- per year. 5. On the strength of the aforesaid certificate petitioner applied for her appointment on the post of Aganbari Karyakatri. In due course she was appointed on 28.8.2010 and joined on the post at Vaishpur Centre, Azamgarh. 6. In turn, respondent No. 6 has filed complaint on 7.12.2010 on the Tehasil Diwas for cancellation of income certificate of the petitioner and two other persons. 7. From perusal of the order impugned, it transpires that inquiry was also conducted by the Revenue Inspector, who recommended cancellation of income certificate on the ground that in the name of petitioner’s father-in-law there are two tractors, Maruti car and Pacca house including agricultural land measuring about 2.5 hectare. It also transpires from the perusal of the impugned order that notice was issued to the petitioner to show-cause as to why her income certificate be not cancelled. In view of the content of the impugned order, it appears that petitioner did not file any reply, and consequently, her income certificate has been cancelled by the impugned order dated 11.2.2011. 8. The aforesaid order has been challenged on the ground that after receipt of notice petitioner has filed her objection before the Tehsildar concerned. In view of the content of the impugned order, it appears that petitioner did not file any reply, and consequently, her income certificate has been cancelled by the impugned order dated 11.2.2011. 8. The aforesaid order has been challenged on the ground that after receipt of notice petitioner has filed her objection before the Tehsildar concerned. This avernment has been made in paragraph-12 of the writ petition, but the Tehsildar without considering the same has passed the impugned order. It has also been stated by the learned counsel for the petitioner that order impugned does not contain any reason for cancelling the income certificate of the petitioner. 9. Learned Standing Counsel submitted that in view of the fact that petitioner has not filed any reply, therefore, income certificate has rightly been cancelled. In his further submissions the writ petition is not maintainable as petitioner has got alternative remedy of appeal under Section 3 of the Uttar Pradesh Janhit Guarantee Adhiniyam, 2011 before the Sub-Divisional Magistrate of the concerned Tehsil. 10. In response thereto learned counsel for the petitioner contended that in view of the fact that petitioner has given reply to the objection but same has not been considered by the Tehsildar, therefore, order impugned would fall under the category of non observance of principle of natural justice and non consideration of the reply amounts to denial of adequate opportunity of hearing. He further submits that alternative remedy is not absolute bar for entertaining the writ petition and the impugned order has been passed in breach of principle of natural justice, therefore, petition should be entertained and the petition should not be thrown on the ground of alternative remedy. 11. Two counter-affidavits have been filed one on behalf of the respondent No. 6 and another for the State-respondent. So far as the counter-affidavit of the State-respondent is concerned the factum of paragraph-12 of the writ petition has been denied and it is stated that petitioner did not produce any evidence. 12. In the rejoinder-affidavit the factum of paragraph-6 of the counter-affidavit has been denied and it has been reiterated that petitioner has filed objection before the Tehsildar concerned but same has not been taken into consideration, while passing the impunged order. 12. In the rejoinder-affidavit the factum of paragraph-6 of the counter-affidavit has been denied and it has been reiterated that petitioner has filed objection before the Tehsildar concerned but same has not been taken into consideration, while passing the impunged order. Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 11, has held that availability of alternative statutory remedy is no absolute bar in entertaining the writ petition provided the order under challenged has been passed in breach of natural justice or it is without jurisdiction. 13. We have gone through the impugned order in which it is observed that service of notice was affected through the peon of the office, but it is not mentioned that on which date the notice was served upon the petitioner, but in view of the fact that petitioner herself has admitted that she has filed her reply but the same has not been considered by the Tehsildar there is no occasion to presume that notice was not served. 14. We have gone through the impugned order, operative portion of the same read as under: Jherh lqeu o Jherh fjadw flag o Jherh izfrek dks viuk lk{;@lcwr izLrqr djus gsrq fnuakd 17&01&2011 dks rglhy mifLFkr gsrq uksfVl tkjh dh x;h ftls utkjr vuqHkkx ls utkjr pijklh }kjk rkfey djk;k x;k gSA buds }kjk vkt rd dksbZ lk{; izLrqr ugha fd;k x;kA ftlls Li”V gks lds budh okLrfod vk; fdruh gSA eSaus i=koyh ij miyC/k vfHkys[kksa@lk{;ksa dk lE;d voyksdu fd;k] voyksdu lR; gS fd Jherh lqeu iRuh larks”k lk0 cS'kiqj ds i{k tkjh vk; izek.k ntZ jftLVj esa 6 ekg ds vUnj dk tkjh gksuk ugh ik;k x;k rFkk Jherh fjadw flag iRuh v:.k flag iq= ‘;kedqaoj flag lk0 cS'kiqj ds i{k fuxZr vk; izek.k i= dzekad 6111010108220 fnukad 13-07-2010 ekfld vk; 1600-00 okf”kZd vk; 19200-00 o izfrek iRuh pUnz izdk’k ik.Ms; lk0 cS'kiqj ds Ik{k fuxZr vk; izek.k i= dzekad 61110105176 fnukad 29-06-2010 ekfld vk; 2000-00 okf”kZd vk; 24000-00 dk izek.k i= fujLr fd;k tkuk mfpr izrhr gksrk gSA 15. From the perusal of the aforesaid order it transpires that the Tehsilder has neither considered the reply of the petitioner as has been alleged by him nor recorded any reason for cancelling the certificate except that inquiry officer found that the certificate was not issued after due consideration. 16. From the perusal of the aforesaid order it transpires that the Tehsilder has neither considered the reply of the petitioner as has been alleged by him nor recorded any reason for cancelling the certificate except that inquiry officer found that the certificate was not issued after due consideration. 16. The Apex Court in the case of Sant Lal Gupta and others v. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336 , has held that order which does not contain any reason becomes lifeless. The Apex Court has observed as under: “27.....The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected.” 17. After going through the impugned order we are satisfied that no reason has been recorded by the Tehsildar in cancellation of the income certificate of the petitioner even in the absence of reply of the petitioner at least the Tehsildar ought to have recorded reason for cancellation of the income certificate on the basis of material available before him that may be a complaint, inquiry report etc. 18. Learned Standing Counsel has tried to defend the order by taking shelter of paragraph -6 of the counter-affidavit in which it is stated that a report has been submitted by the Revenue Inspector stating therein that in the name of petitioner’s father-in-law there are two tractors, Maruti Car, Pacca house and agricultural land measuring about 2.5 hectare. 19. The Apex Court in the case of Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, AIR 1978, 851 Paragraph-8 has held as under : “The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the acting’s and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” 20. Here in this case no reason has been recorded by the Tehsildar therefore this kind of order cannot be sustained in eyes of law. The impugned order dated 11.2.2011 is hereby quashed. 21. The writ petition is allowed. 22. The matter is remitted back to the concerned Tehsildar for passing a fresh order after giving an opportunity of hearing to the petitioner, respondent No. 6 and other interested person, if any. The petitioner is directed to file fresh objection alongwith certified copy of this order. The Tehsildar before passing the order shall consider the petitioner’s objection/reply in accordance with law. There is an interim order operating in this case, it is needless to say that interim order shall remain in operation till the decision is taken by the Tehsildar.