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2024 DIGILAW 238 (ALL)

Girish Chandra v. State of U. P.

2024-01-23

DINESH PATHAK

body2024
JUDGMENT Dinesh Pathak, J. Heard learned counsel for the petitioner, learned Standing Counsel and perused the record on board. 2. In view of the peculiar facts and circumstances of the present case and the order proposed to be passed hereinunder, this Court proceeded to decide the instant writ petition finally at admission stage, with the consent of the learned counsel for the petitioner and learned Standing Counsel for the State-respondents without calling for their respective affidavits. 3. The petitioner has shown his grievance against the ex-parte orders dated 4.10.2023 and 11.10.2023 passed by Consolidation Officer (respondent No. 3) behind his back sans opportunity of hearing accorded to him. For ready reference, orders dated 4.10.2023 and 11.10.2023, which are under challenge before this Court, are quoted hereinbelow:- Order Dated: 4.10.2023 Order Dated: 11.10.2023 4. Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it is manifested that, vide order dated 2.3.2012 passed by Consolidation Officer in Case No. 381 under Section 9A(2) of UP Consolidation of Holdings Act (in brevity, 'UPCH Act'), the land in question was ordered to be recorded in favour of the present petitioner along with other co-sharers. At subsequent stage, the tenure holders, in whose favour the order dated 2.3.2012 has been passed, have moved an appropriate application under Rule 109 of UP Consolidation of Holdings Rules (in brevity, 'UPCH Rules') for giving effect to the order dated 2.3.2012 in the consolidation record. On the said application, the Assistant Consolidation Officer has submitted report dated 2.6.2023 acknowledging the order dated 2.3.2012 passed in the proceeding under Section 9 A(2) of UPCH Act. Having considered the report submitted by the Assistant Consolidation Officer, learned Consolidation Officer has passed the order dated 11.8.2023 approving the report dated 2.6.2023 and, accordingly, Parvana has been issued on 22.8.2023 for correction of record. In pursuance thereof, R6 has been prepared by Assistant Consolidation Officer under Rule 109 of UP Consolidation of Holdings Rules on 25.8.2023. At later stage, UP Zila Adhikari, Budhanpur, in administrative side, has made a communication dated 16.10.2023 being letter No. 792/Ra.Ka. to the Settlement Officer of Consolidation for quashing the order dated 11.8.2023. Settlement Officer of Consolidation, in turn, has made communication dated 6.11.2023. At later stage, UP Zila Adhikari, Budhanpur, in administrative side, has made a communication dated 16.10.2023 being letter No. 792/Ra.Ka. to the Settlement Officer of Consolidation for quashing the order dated 11.8.2023. Settlement Officer of Consolidation, in turn, has made communication dated 6.11.2023. The Consolidation Officer, in pursuance of the letter dated 6.11.2023 issued by the Settlement Officer of Consolidation, has passed an order dated 4.10.2023 (Annexure No. 1) recalling the order dated 11.8.2023. Subsequently, the order dated 11.10.2023 has been passed as well for deleting the endorsement of order dated 2.3.2012 from consolidation record, which has been passed in judicial proceeding under Section 9 A(2) of UPCH Act. 5. This Court noted with utmost surprise, how consolidation authorities have defied the judicial process in recalling the order dated 11.8.2023 and deleting the endorsement of order dated 2.3.2012 passed under Section 9A(2) of UPCH Act from the land record. Consolidation Officer has passed the order impugned dated 4.10.2023 and 11.10.2023 on the basis of a letter issued by the Settlement Officer of Consolidation, in administrative capacity. The Settlement Officer of Consolidation and the Consolidation Officer have overstepped their authority by recalling a judicial order while acting in their administrative capacities. They have inherent lack of authority/jurisdiction to recall the judicial order in exercise of their power in administrative capacity. Even otherwise, no opportunity of hearing had been afforded to the present petitioner and other co-tenure holders, who are adversely affected due to the orders impugned dated 4.10.2023 and 11.10.2023. Valuable rights arose in favour of the tenure holders in pursuance of the judicial order dated 2.3.2012 passed under Section 9A(2) of UP Consolidation of Holdings Act cannot be permitted to be snatched in such a rough manner without adopting due process of law. Record further reveals that the Consolidation Officer, vide communication letter dated 14.11.2023 (annexure No. 11), has informed to the Settlement Officer of Consolidation for compliance of its administrative direction dated 6.11.2023. The extra-judicial steps taken by the Settlement Officer of Consolidation and Consolidation Officer are unjustified and unsustainable in the eye of law. The order passed in judicial side cannot be recalled/vacated in the administrative side except in accordance with law by approaching before the court competent resorting to appropriate remedy. 6. The extra-judicial steps taken by the Settlement Officer of Consolidation and Consolidation Officer are unjustified and unsustainable in the eye of law. The order passed in judicial side cannot be recalled/vacated in the administrative side except in accordance with law by approaching before the court competent resorting to appropriate remedy. 6. It is also a matter of concern that the impugned orders dated 4.10.2023 and 11.10.2023 have been passed ex-parte sans opportunity of hearing to the present petitioner and other cotenure holders adversely affecting their legal right, title, interest and possession over the land in question which amounts abuse of process of law. On the pointed query raised to learned Standing Counsel qua opportunity of hearing accorded to the recorded tenture holder including present petitioners before passing the orders impugned, he has shown his inability to contradict the submissions advanced by the learned counsel for the petitioner. The orders impugned evince the ex-parte proceeding initiated and decided against the present petitioner sans opportunity of hearing. It is abundantly clear that present petitioner and other recorded tenture holders are adversely affected owing to violation of natural justice and fair play. In this regard, considering the relevance of opportunity of hearing before expunging the entries of the recorded tenure holder from the record, this Court has already expounded in the batch of case, leading being Writ B No. 2093 of 2021 (Fakira and 12 others v. State of UP and 4 others) that opportunity of hearing must be given to the recorded tenure holders before expunging their names 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. 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 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. 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? 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. 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. 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). (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). 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. In this conspectus, as above, I am of the considered view that learned Consolidation Officer has passed the orders in violation of cannons of natural justices and fair play as well as in exercise of it's extra judicial power. Learned counsel for the petitioner has successfully substantiated his submissions in assailing the orders impugned dated 4.10.2023 and 11.10.2023. 8. Resultantly, instant writ petition succeeds and is allowed. The orders dated 4.10.2023 and 11.10.2023 passed by the Consolidation Officer (respondent No. 3) are hereby quashed and the entries in pursuance of the order dated 11.8.2023 passed under Rule 109-A of UPCH Rules and 2.3.2012 passed in Case No. 381 under Section 9A(2) of UPCH Act are restored to the land record.