High Court
Case Details
Court No. - 51 Case :- WRIT - B No. - 2442 of 2022 Petitioner :- Eklakh Ahmad Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Munna Tiwari Counsel for Respondent :- C.S.C. Hon'ble Dinesh Pathak,J.
Facts
1. Heard learned counsel for the petitioner and learned Standing Counsel representing the respondent nos. 1 & 2. 2. In the peculiar facts and circumstances of the present case and order proposed to be passed hereinunder, this Court proceeds to decide the instant writ petition finally at admission stage with the consent of counsels for the parties present, without calling for their respective affidavits and without putting notice to the respondent no. 3, who is at liberty to move recall application in case any fact or detail as mentioned in the writ petition are found incorrect. 3. Petitioner is aggrieved with an ex-parte order dated 29.8.2022, by which previous order dated 20.4.2022 passed in proceeding under Rule 109 of U.P. Consolidation of Holdings Rules (in brevity of U.P.C.H. Rules) has been quashed sans opportunity of hearing accorded to the petitioner. 4. Facts culled out from the averment made in the writ petition are that Consolidation Officer has passed the order dated 20.4.2022 (Annexure No. 3) under Rule 109 of U.P.C.H. Rules. Against the order dated 20.4.2022, a third person - Shankar Gupta (respondent no. 3) has moved restoration application dated 29.8.2022. The Consolidation Officer on the same date jotted in the margin of the application to the effect that an ex-parte order dated 20.4.2022 is quashed. Being aggrieved against the ex-parte order dated 29.8.2022, petitioner has filed the instant writ petition. In paragraph nos. 9 to 12 of instant writ petition specific plea has been taken that no opportunity of hearing has been afforded to the petitioner. 5. Learned counsel for the petitioner submits that order dated 29.8.2022 passed by Consolidation Officer is an ex-parte sans opportunity of hearing accorded to the petitioner. It is further submitted that Consolidation Officer has jotted the order dated 29.8.2022 in the margin of the application dated 29.8.2022, on the same date, without adhering to the principals of natural justice and fair play. It is next submitted that the restoration applicant (Shankar Gupta) has no concern with the property in question, therefore, restoration application filed on his behalf is not maintainable in the eye of law. It is next contended that the impugned order dated 29.8.2022 being, illegal, cryptic and suffers infirmity, is liable to be quashed. 6. Perusal of the order dated 29.8.2022, which is jotted in the margin of the application dated 29.8.2022 moved by the respondent no. 3, reveals that same has been passed on the very date of application without following the principals of law. There is no indication with respect to the issuance of notice to the adversely effected parties in whose favour earlier order dated 20.4.2022 was passed. Perusal of order dated 20.4.2022 reveals that same has been passed under Rule 109 of U.P.C.H. Rules to implement the orders dated 2.11.2018 and 8.7.1980. It is specific case of the petitioner that the contesting respondents have no concern with the orders dated 2.11.2018 and 8.7.1980. Said aspect of the matter has not been considered by the Consolidation Officer. 7. At this juncture, it would not be befitting to make any comment with respect to right and title of the respondent no. 3 over the property in question which is required to be examined by the authority competent. The instant writ petition is being entertained on solitary issue of violation of principals of natural justice and fair play.
Legal Reasoning
8. 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 Vs. Deputy Director of Consolidation, Azamgarh reported in AIR 1996 Allahabad 88, co-ordinate 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." Explaining the principle of natural justice in the matter of Canara Bank and others Vs. Shri Debasis Das and others reported in AIR 2003 Supreme Court 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. 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 Vs. 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).