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2024 DIGILAW 237 (ALL)

Vijay Pal Singh v. State of U. P.

2024-01-23

DINESH PATHAK

body2024
JUDGMENT Dinesh Pathak, J. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. In view of the peculiar facts and circumstances of the present case and order proposed to be passed herein under, this Court proceeds to decide the instant writ petition at admission stage with the consent of learned counsel for the petitioner and learned Standing Counsel for the State respondents without calling for their respective affidavits. 3. Petitioner is aggrieved with the ex-parte order dated 01.08.2023 passed by Consolidation Officer (respondent no.5) behind his back sans opportunity of hearing accorded to him, consequently, he has been deprived of from his valuable right, title, interest and possession over the land in question. 4. Perusal of record, as available, reveals that Assistant Consolidation Officer has submitted ex-parte report dated 01.08.2023 for expunging the name of recorded persons from plot Nos.300, 318, 357, 385, 387, 409, 422, 452, 453, 456, 524, 537, 840, 951, 953, 955, 954-kha, 962, 963, 972 and 983 total 21 plots area 135 bigha 10 biswa (34.271 hectare) which had allegedly been recorded in Clause 5-3 kha(1) as jungle jhadi. Consolidation Officer, without giving notice to the recorded persons, who are adversely affected owing to the aforesaid report, has passed the order impugned dated 01.08.2023 expunging the name of all the recorded persons from the aforesaid plots. Present petitioner is also one of the affected person owing to the order impugned dated 01.08.2023. It is a specific case of the present petitioner that neither any notice has been issued to the recorded tenure holders including the present petitioner nor opportunity of hearing had been accorded to them before passing the order dated 01.08.2023, which is under challenge before this Court. 5. Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it is manifested that order impugned dated 01.08.2023 has been passed on the basis of the report of the same date i.e. 01.08.2023 submitted by Assistant Consolidation Officer. There is no whisper in the order impugned qua issuance of notice to the affected persons, who are recorded tenure holder over the plot in question or affording them opportunity of hearing before passing ex-parte order dated 01.08.2023. There is no whisper in the order impugned qua issuance of notice to the affected persons, who are recorded tenure holder over the plot in question or affording them opportunity of hearing before passing ex-parte order dated 01.08.2023. It is own finding returned by Consolidation Officer that several persons were recorded in the revenue record over the plot in questing being a bhumidhar with transferable right or bhumidhar with non transferable right. Learned Consolidation Officer has treated the land in question as public utility land, which was allegedly recorded as jungle jhadi, under Section 77 of U.P. Revenue Code, 2006 (akin to Section 132 of U.P. Zamindari Abolition and Land Reforms Act) and, accordingly, passed order to expunge the names of recorded persons. 6. On the pointed query raised to the learned Standing Counsel qua opportunity of hearing being accorded to the recorded tenure holders, whose name have been ordered to be expunged from the revenue record in pursuance of the order impugned dated 01.08.2023, he has shown his inability to contradict the submissions made by learned counsel for the petitioner. Order impugned evince that ex-parte proceeding has been initiated and decided against the present petitioner and other co-tenure holder on the date of report itself sans opportunity of hearing accorded to them. It is abundantly clear that recorded tenure holders are adversely affected owing to violation of natural justice and fair play. In this regard, considering the opportunity of hearing before expunging the name of recorded tenure holders from the record, this Court has already expounded in the batch of cases, leading Writ-B No.2093 of 2021 (Fakira and 12 others v. State of U.P. and 4 others), decided on 18.08.2022, that opportunity of hearing must be accorded to the recorded tenure holders before expunging their name from the revenue record. Relevant paragraph nos.12, 13 and 14 of the aforesaid judgement is quoted hereinbelow: "12. It is abundantly clear that right and title of the petitioners are affected owing to violation of natural justice and fair play. They have been deprived of their valuable rights sans adhering to the cannons of natural justice. Relevant paragraph nos.12, 13 and 14 of the aforesaid judgement is quoted hereinbelow: "12. It is abundantly clear that right and title of the petitioners are affected owing to violation of natural justice and fair play. They have been deprived of their valuable rights sans adhering to the cannons of natural justice. In the matter of Muzeeb v. Deputy Director of Consolidation, Azamgarh reported in AIR 1996 Allahabad 88, coordinate Bench of this Court has held that a post order opportunity of hearing is necessary to the person adversely affected in the cases where an entry is expunged or corrected in the revenue record sans opportunity of hearing. The relevant paragraph 5 of the judgment dated 16.2.1995 in case of Muzeeb (supra) is quoted hereinunder: "5. But the matter does not end here. The possibility of an error creeping in by authority concerned cannot be ruled out. The authority passed order without hearing person adversely affected. In such matters possibility cannot be ruled out that the person affected be possessed of sufficient material by which he may be able to show that the order giving rise to entry in dispute is not a forged one. This requires safeguarding of interest of person adversely affected by correction of entry in revenue papers. This interest of affected person can be safeguarded by providing him a post order opportunity of hearing. This will also exclude possibility of error, which may arise due to want of opportunity of hearing and a possible error will also stand rectified in maintenance of correct revenue entries. For said reason a post order opportunity of hearing is necessary to person adversely affected in cases where an entry is expunged or corrected in revenue records and order correcting entry is passed without affording opportunity of hearing to person adversely affected. Correcting an entry to be based on forged or non-existing order, to which person aggrieved raises an objection that the order of correction has been wrongly passed, the aggrieved person is entitled to be heard after correction being done." 13. Explaining the principle of natural justice in the matter of Canara Bank and others v. Shri Debasis Das and others reported in AIR 2003 SC 2041 , Hon'ble Supreme Court has expounded that order passed in violation of natural justice is no final decision on the case. Explaining the principle of natural justice in the matter of Canara Bank and others v. Shri Debasis Das and others reported in AIR 2003 SC 2041 , Hon'ble Supreme Court has expounded that order passed in violation of natural justice is no final decision on the case. Relevant paragraphs 16 and 21 of the judgment passed in Canara Bank and others (supra) is quoted hereinbelow: "16. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. 21. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua' as stated in (1605) 12 Co.Rep.114 that is, 'no man shall be a judge in his own cause'. Coke used the form 'aliquis non debet esse judex in propria causa quia non potest esse judex at pars' (Co.Litt. 1418), that is, 'no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party'. The form 'nemo potest esse simul actor et judex', that is, 'no one can be at once suitor and judge' is also at times used. The second rule is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries, the form 'audietur at altera pars' is used, meaning very much the same thing. The form 'nemo potest esse simul actor et judex', that is, 'no one can be at once suitor and judge' is also at times used. The second rule is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries, the form 'audietur at altera pars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated." 14. In the case of Ram Bachan Yadav and another v. State of UP and others, reported in 2018 (140) RD 39 , co-ordinate Bench of this Court has considered the requirement of opportunity of hearing before passing the adverse order against the recorded tenure holder expunging his name from the revenue record. The relevant paragraphs No. 14, 16 and 17 of the judgment in the case of Ram Bachan (supra) are quoted hereinunder: "14. In the following authorities the Supreme Court has held that even before passing administrative orders affecting rights of parties opportunity of hearing shall be granted : (1) Ashok v. Union of India, AIR 1997 SC 2298 (It was a case of ban of particular insecticides). (2) Sahi Ram v. Awtar Singh, AIR 1999 SC 2169 (It was a case of mining lease). (3) G. Pharmaceuticals v. State of U. P., AIR 2001 SC 3707 (It was a case of black listing of contractor). (4) H.A. Shakoor v. Union of India, AIR 2002 SC 2423 (It was a case of reduction of category of a contractor). (2) Sahi Ram v. Awtar Singh, AIR 1999 SC 2169 (It was a case of mining lease). (3) G. Pharmaceuticals v. State of U. P., AIR 2001 SC 3707 (It was a case of black listing of contractor). (4) H.A. Shakoor v. Union of India, AIR 2002 SC 2423 (It was a case of reduction of category of a contractor). (5) Director General of Police v. M. Sarkar, [1996] 3 SCR 530 (In this case constables were discharged from service on the ground that they produces a fake list from Employment Exchange without providing opportunity of hearing. Supreme Court approved the order of High Court setting aside discharge order on the ground of denial of opportunity of hearing). (6) All India S.C. and S.T. Employees Association v. A.A. Jeen, [2001] 2 SCR 1183 (In this case hundreds of employees were affected hence Supreme Court held that they might be served in representative capacity). (7) Godawat Pan Masala Products v. Union of India, AIR 2004 SC 4057 (In this case it was held that notification prohibiting manufacture and sale etc. of pan masala and gutka was bad in law as it had been issued without providing opportunity to the manufactures of meeting the facts relied upon in the notification in respect of injurious effects of pan masala and gutka). (8) Canara Bank v. Debasis Das, (2003) 2 LLJ 531 (SC) (In this authority several principles of natural justice expressed in Latin words have been discussed in detail giving their history (since 1215), scope and applicability. 16. Accordingly, it is held that whenever an entry in the revenue record is to be cancelled and substituted particularly when the entry is continuing for more than a year, notice must be given to the party in whose favour entry stands even if prima facie, authority/court concerned (i.e. Deputy Collector/Sub Divisional Officer in most of the cases) is of the opinion that the entry is result of fake order or fraud. 17. Revenue, authorities/courts must remember that a party can in some cases successfully show that entry of his name in the revenue record is correct and not fake or based upon fake order. This question can be decided only and only after hearing the party concerned and likely to be affected." 7. 17. Revenue, authorities/courts must remember that a party can in some cases successfully show that entry of his name in the revenue record is correct and not fake or based upon fake order. This question can be decided only and only after hearing the party concerned and likely to be affected." 7. In this conspectus, as above, I am of the considered view that learned counsel for the petitioner has substantiated his submissions in assailing the order impugned dated 01.08.2023 passed by Consolidation Officer. There is no indication in the order impugned qua issuance of the notice to the recorded tenure holder and affording them opportunity of hearing. Impugned order has been passed in blatant violation of natural justice and fair play. Long standing entries in the name of recorded tenure holders, who have conferred their rights being a bhumidhar with transferable right or bhumidhar with non transferable right, cannot be expunged in such a casual manner and same will amounts abuse of process of law. 8. As such, without entering into the merits of the case, as averred in the instant writ petition qua right and title of the petitioner, instant writ petition succeeds and is allowed on the limited point of opportunity of hearing. Order impugned dated 01.08.2023 passed by Consolidation Officer, Khurja, Bulandshahar (respondent no.5) in Case No.0542/2023 (State v. Jaypal Singh & others) is hereby quashed. The matter before the Consolidation Officer is restored to its original number. Parties are relegated before the Consolidation Officer to get the matter decided denovo. 9. In the interest of justice, in order to avoid harassment to the parties concerned and multiplicity of the proceedings pertaining to the plot in question, it would be appropriate to issue a direction that this order will cover all the recorded persons, who are being affected owing to order impugned dated 01.08.2023 and their name have been expunged from the revenue record considering the land in question as a public utility land. As such, the Consolidation Officer concerned is hereby directed to issue notices to all the recorded tenure holders, who have allegedly got their name recorded in the revenue record over the plot in question and are adversely affected owing to the order impugned dated 01.08.2023. 10. As such, the Consolidation Officer concerned is hereby directed to issue notices to all the recorded tenure holders, who have allegedly got their name recorded in the revenue record over the plot in question and are adversely affected owing to the order impugned dated 01.08.2023. 10. It is expected that case of every individuals shall be considered and decided by reasoned and speaking order in accordance with law after affording opportunity of hearing to the parties concerned without granting them unnecessary adjournments.