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2021 DIGILAW 88 (JHR)

Kishore Singh v. State of Jharkhand

2021-01-19

RAJESH SHANKAR

body2021
JUDGMENT : The present writ petition has been filed for quashing the order dated 07.09.2020 (Annexure-2 to the writ petition) passed by the respondent No.3 in Revenue Miscellaneous Case No. 147/2009-2010 whereby deputation of police force and Magistrate has been provided to the respondent No.6 to construct the boundary wall over the land in question. 2. Learned counsel for the petitioners submits that the plaintiffs/petitioners filed Title Suit (D) No. 131 of 2010 before the Sub-ordinate Judge-IV, Deoghar seeking the following reliefs: “a. For a declaration that plaintiffs have subsisting right, title, interest and possession over all the suit properties fully described in Schedule-1 of this plaint and the deed Nos. 3387 for the year 2009, IV/555 for the year 2009 and 1494 for the year 2009 of Deoghar Registry Office are void ab-initio, illegal, inoperative and not binding on the plaintiffs. b. For declaration that the registered sale deed being deed No. 1494 for the year 2009, deed No. IV/155, volume 3 pages 294 to 297 and deed No. 3387 for the year 2008 all of Deoghar Registry Office are the result of fraud, misrepresentation and false allurements. c. For a permanent injunction restraining the defendant Nos. 1 & 2 from any interference in the right, title, interest and possession of the plaintiffs over the land fully described in schedule below. d. For any other relief or reliefs to which the plaintiffs may be deemed fit and entitled to.” 3. Learned counsel for the petitioners further submits that the land situated at Village-Hadokuda and Village-Choudharidih, both within P.S-Madhupur, Circle-Devipur, District-Deoghar are recorded in the last Gantzer’s Survey Settlement report in the names of Thakur Roy, Banwari Roy and Gondo Roy, all sons of Late Rangu Roy. The plaintiffs and the defendants-2nd parties are the descendants of Late Rangu Roy and the said land were under cultivating possession of the plaintiffs and the defendants 2nd parties without any partition. The defendant No.3/respondent No.8 (Gulab Roy @ Gulab Singh) executed a deed of agreement for sale and purchase with the defendant No.1/respondent No.7 on 24.11.2008 and also executed power of attorney dated 14.05.2009 empowering the defendant No.1/respondent No.7 to sell various plots of the suit properties appertaining to Jamabandi Nos. 5 & 6 admeasuring total area of 3.95 acres situated at Circle-Devipur, Mouza-Hadokuda, Thana No. 42. 5 & 6 admeasuring total area of 3.95 acres situated at Circle-Devipur, Mouza-Hadokuda, Thana No. 42. Thereafter, the defendant No.1/respondent No.7 executed a sale deed in respect of the suit properties in favour of the defendant No.2/respondent No.6 (cousin of the defendant No.1) through registered deed No. 1494 dated 17.06.2009. The respondent No.6 filed a writ petition being W.P.(C) No. 5065 of 2019 before this Court for issuance of direction upon the State-respondents to provide police force for constructing boundary wall over the land in question. The said writ petition was disposed of by this Court vide order dated 21.11.2019 directing the respondent No.2 to pass an appropriate order in accordance with law, after calling upon the other side, if necessary, within a period of two months from the date of receipt of the representation filed by the respondent No.6. It is further submitted that the respondent No.3 has passed the impugned order dated 07.09.2020 contrary to the direction issued by this Court in W.P.(C) No. 5065 of 2019 as no notice was issued to the petitioners and similarly situated parties, who are the affected ones parties. In fact, Title (Declaration) Suit No. 131 of 2010 filed by them is still pending in the Court of the Sub-ordinate Judge-I, Deoghar. It is further submitted that the impugned order dated 07.09.2020 has been passed in violation of the principles of natural justice as the respondent No.3 has failed to provide an opportunity of hearing to the petitioners and if the same is not quashed by this Court, the petitioners shall suffer irreparable loss and injuries. It is also submitted that the said sale deed was executed without any knowledge of the petitioners, though the suit property was a joint family property and the petitioners had also equal share and interest with the defendant No.3/respondent No.8 over the same. 4. Learned counsel appearing on behalf of the State-respondents submits that the respondent No.3 has rightly passed the impugned order dated 07.09.2020 deputing police force and Magistrate to the aid of the respondent No.6 for preventing any obstruction caused by the opponents in making construction over the land in question as no order of status-quo has been passed by any competent Court of law as on date. It is further submitted that the respondent No.3 has not violated the order dated 21.11.2019 passed by this Court in W.P.(C) No. 5065/2019 as the petitioners did not have any right to appear in the said case. 5. Heard learned counsel for the parties and perused the relevant materials available on record. On bare perusal of the impugned order dated 07.09.2020, it appears that earlier the respondent No.6 had made a complaint against some persons regarding obstruction being made by them in erecting the boundary wall and making construction over the land in question leading to lodging of an F.I.R being Devipur P.S. Case No. 134 of 2018. The accused persons, namely, Vikash Roy, Sanjay Roy and Rajendra Roy moved this Court by filing an anticipatory bail application being A.B.A. No. 4808 of 2019 and they were granted anticipatory bail in the said case vide order dated 24.07.2019 passed by a Bench of this Court on giving an undertaking by them that they would not interfere with the construction of the petitioners’ house unless and until any appropriate order is passed in their favour by a competent Court of law with further condition that they would not annoy or disturb the petitioners in any manner during the pendency of the said case. The respondent No.3 while passing the impugned order dated 07.09.2020, also took into consideration the order dated 11.10.2019 passed in Cr. Misc. Case No. 609 of 2019 whereby the earlier order directing the parties to maintain status-quo over the said land was vacated. 6. The thrust of the argument of learned counsel for the petitioners is that no opportunity of hearing was given to the petitioners before passing the impugned order dated 07.09.2020 and thus the respondent No.3 has failed to comply the order dated 21.11.2019 passed by this Court in W.P.(C) No. 5065 of 2019. 7. On perusal of the order dated 21.11.2019, it would appear that while disposing of the said writ petition, the respondent No.2 was directed to take appropriate decision in the matter and if necessary, by calling upon the other side. 7. On perusal of the order dated 21.11.2019, it would appear that while disposing of the said writ petition, the respondent No.2 was directed to take appropriate decision in the matter and if necessary, by calling upon the other side. Thus, it seems that the petitioners were not given any audience by the respondent No.2 before passing the order dated 07.09.2020 also keeping in view the undertaking of the co-accused persons of Devipur P.S. Case No. 134 of 2018 as recorded in the order dated 24.07.2019 passed in A.B.A. No. 4808 of 2019. 8. In the case of Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise & Ors. reported in (2015) 8 SCC 519 , the Hon’ble Supreme Court has held as under: “39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason—perhaps because the evidence against the individual is thought to be utterly compelling—it is felt that a fair hearing “would make no difference”—meaning that a hearing would not change the ultimate conclusion reached by the decision-maker—then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578 : (1971) 2 All ER 1278 (HL)] , who said that: (WLR p. 1595 : All ER p. 1294) “… A breach of procedure … cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. [(1971) 1 WLR 1578 : (1971) 2 All ER 1278 (HL)] , who said that: (WLR p. 1595 : All ER p. 1294) “… A breach of procedure … cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.” Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [ (1980) 1 WLR 582 : (1980) 2 All ER 368 (CA)] that: (WLR p. 593 : All ER p. 377) “… no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing.” In such situations, fair procedures appear to serve no purpose since the “right” result can be secured without according such treatment to the individual. 40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of “prejudice”. The ultimate test is always the same viz. the test of prejudice or the test of fair hearing.” 9. Thus, the principles of natural justice cannot be applied in straitjacket formula. Where a fair hearing would not change the ultimate conclusion to be reached by the decision-maker, no legal duty to supply a hearing arises in that situation. Every violation of a facet of natural justice may not lead to a conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of ‘prejudice’. The ultimate test is always the same viz. the test of prejudice or the test of fair hearing. 10. Every violation of a facet of natural justice may not lead to a conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of ‘prejudice’. The ultimate test is always the same viz. the test of prejudice or the test of fair hearing. 10. Learned counsel for the petitioners has failed to show before this Court as to what prejudice was caused to the petitioners by not providing an opportunity of hearing to them and that there was any order of injunction passed by the competent Court of law. As such, in absence of any order of stay, the respondent No.6 could not have been restrained from raising any construction over the land in question. Any alteration made in the suit property would certainly be subject to the final outcome of the pending suit. So far as the argument of learned counsel for the petitioners to the effect that the petitioners have got right, title and interest over the suit land, the said issue is still pending in Title (D) Suit No. 131 of 2010 and as such I do not intend to make any comment over the same. 11. In view of the aforesaid factual and legal position, I do not find any infirmity in the impugned order dated 07.09.2020 passed by the respondent No.3 in Revenue Miscellaneous Case No. 147 of 2009-10 so as to warrant any interference with the same under the writ jurisdiction. 12. The present writ petition is, accordingly, dismissed.