Smt. Maqsoodan vs The Collector/Distt. Dy. D.C. ...
2011 Latest Caselaw 939 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 05
 

 
CIVIL MISC. WRIT PETITION NO. 54515 OF 2006 
 
Smt. Maqsoodan.
 
Vs. 
 
The Collector/District Deputy Director of Consolidation, Jaunpur and others.
 

 
Hon'ble A.P. Sahi, J.

Heard Sri S.C. Tripathi, learned counsel for the petitioner and Sri H.N. Singh, Advocate, who has filed an impleadment application on behalf of Arshad and others and another application has been filed by one Madan Sen Sonkar through Mithilesh Kumar Tiwari, Advocate who contend that the land could not have been allotted to the petitioner and the petitioner has obtained the orders from the Consolidation Authorities fraudulently.

This writ petition was entertained on 27.09.2006 and the following interim order was passed:

"Connect with Civil Misc. Writ Petition No. 52795 of 2006.

Heard learned counsel for the petitioner and learned Standing Counsel for the respondents no. 1 to 6, who prays for and is allowed four weeks' time to file counter affidavit. The petitioner shall have three weeks thereafter to file rejoinder affidavit.

Issue notice to respondent no. 7, who may also file counter affidavit. Petitioner shall take steps for service of notice within 10 days. Office shall issue notices fixing a date after either weeks.

List for admission on the date fixed in the notice.

The facts are that rights of the petitioner over the property in dispute were recognized in consolidation proceedings by the Consolidation Officer as long back as on 25.4.1960. Due to inadvertence, the said order could not be recorded in the revenue records on account of which the petitioner filed an objection under Section 9 A(2) of the U.P. Consolidation of Holdings Act during subsequent consolidation proceedings. The said objection was allowed by the Consolidation Officer vide order dated 28.11.1992. The Gaon Sabha filed a restoration application dated 19.7.1994 for recalling the order dated 28.11.1992 which was dismissed on 28.8.1996. Thereafter, the State filed an appeal challenging the order dated 28.11.1992 passed by the Consolidation Officer which was also dismissed on 22.6.2001.

It is contended by the learned counsel for the petitioner that inspite of the aforesaid facts, on an application moved by respondent no. 7, the proceedings are being undertaken to expunge the name of the petitioner without permitting him to participate in the proceedings and the authorities are misinterpreting the judgment of the Hon'ble Apex Court in the case of Hinch Lal Tewari Vs. Kamla Devi and others 2001 RD-689 as well as the judgment of this Court in the case of Iqbal Ahmad and others Vs. Deputy Director of Consolidation, Deoria and others 2005(98) RD-580.

In view of the aforesaid facts and circumstances, the petitioner is entitled to an interim order.

Until further orders of this Court, the parties to the writ petition are directed to maintain status quo with regard to nature, possession and entries in the revenue record pertaining to the land in dispute.

The respondents are further restrained from interfering in the peaceful possession of the petitioner over the land in dispute.

A certified copy of this order may be issued to the learned counsel for the parties on payment of usual charges today"

This writ petition having been filed in the year 2006 contains the following two prayers.

"I. Issue a writ of mandamus order or direction in the nature of mandamus commanding the opposite parties not to disturb the right, title and possession of the petitioner over the plots in dispute well described in the writ petition except following the due required procedure in accordance with law.

II. Issue a writ of mandamus order or direction in the nature of mandamus be issued to the respondent authorities commanding them to keep entact the entries in the relevant statutory records as it is today up to the time until and unless the same are ordered to be modified, varied or expunged by any competent judicial forum."

It was further prayed that the Executive Authorities may not dispossess the petitioner by any administrative fiat except otherwise than in accordance with law.

Having heard learned counsel for the parties and having considered the submissions, Sri H.N. Singh, learned counsel for the proposed respondents submits that the writ petition be disposed of finally enabling the authority to take recourse to law.

In view of the aforesaid submission, it is evident that the authorities were proceeding to expunge the entries without having taken notice of and putting the petitioner to notice in relation to the orders which are being relied upon.

Suffice it to say, if the orders have been passed by the Consolidation Authorities, as noted above, then the respondent administration has to move an application for recall or for setting aside such orders, inasmuch as, it is well settled that even an order criticised as being void requires setting aside. Reference be had to the observations of the Apex Court in the Constitution Bench decision of Janardhan Reddy Vs. State of Hyderabad, AIR 1951 SC 217 (Paragraphs 25 and 26) extracted hereinunder:

.........."Evidently, the appellate court in a case which properly comes before it on appeal, is fully competent to decide whether the trial was with or without jurisdiction, and it has jurisdiction to decide the matter rightly as well as wrongly. If it affirms the conviction and thereby decides wrongly that the trial court had the jurisdiction to try and convict it cannot be said to have acted without jurisdiction and its order cannot be treated as a nullity.

* * *

It is well settled that if a court acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e., an appeal would lie to the court to which it would lie if its order was with jurisdiction."

Another decision in the case of State of Kerala Vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) and others reported in (1996) 1 SCC 435 which is more near to the proposition has relied on standard texts to explain the same quoted in Para 8 thereof reproduced hereinunder:

"8. In Halsbury's Laws of England, 4th Edn., (Re-issue) Vol. 1(1) in para 26, p. 31, it is stated, thus:

"If an act or decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved."

In the Judicial Review of Administrative Action, De Smith, Woolf and Jowell, 1995 Edn., at pp. 259-60 the law is stated thus:

"The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows:

(1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction."

Similarly, Wade and Forsyth in Administrative Law, Seventh Edn., 1994, have stated the law thus at pp. 341-342:

"...... every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well-known passage Lord Radcliffe said:

'An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.'

This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects."

The above statement of the law supports our view that the order of the Board dated 28-6-1977, declining to implead Respondents 3 and 4 (which stood confirmed in revision) concludes the matter against Respondents 3 and 4."

The Apex Court while further explaining the above in the context of the case before it went on to hold in Para 7 as under:

"7. ....... In our opinion, even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact, be effective inter partes until it is successfully avoided or challenged in a higher forum. Mere use of the word 'void' is not determinative of its legal impact. The word 'void' has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise........"

It is also equally well settled that the procedure prescribed in law cannot be avoided, inasmuch as, if it is required to be done in a particular manner then it should be done in that manner alone and not otherwise. Reference may be had to the decisions noticed in the case of Prof. Ramesh Chandra Vs. State of U.P. and others, 2007 (4) ESC 2339 (All) (DB) (Paragraph 27) extracted below:

"............. (Vide Taylor v. Taylor, (1876) 1 Ch. D. 426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527; Patna Improvement Trust v. Smt. Lakshmi Devi and others, AIR 1963 SC 1077; State of Uttar Pradesh v. Singhara Singh and others, AIR 1964 SC 358; Nika Ram v. State of Himachal Pradesh, AIR 1972 SC 2077; Ramchandra Keshav Adke v. Govind Joti Chavare and others, AIR 1975 SC 915; Chettiam Veettil Ammad and another v. Taluk Land Board and others, AIR 1979 SC 1573; State of Bihar and others v. J.A.C. Saldanna and others, AIR 1980 SC 326; A.K. Roy and another v. State of Punjab and others, AIR 1986 SC 2160; State of Mizoram V. Biakchhawna, (1995) 1 SCC 156; J.N. Ganatra v. Morvi Municipality Morvi, AIR 1996 SC 2520; Babu Verghese and others v. Bar Council of Kerala and others, AIR 1999 SC 1281; and Chandra Kishore Jha v. Mahavir Prasad, (1998) 8 SCC 266)."

Any order passed by the Consolidation Officer, if ex-parte, is subject to recall or restoration proceedings as the case may be. It is also subject to appeal under Section 11 of the UPCH Act or Section 21(2) thereof, depending upon the nature of the orders to be assailed. Thus the act itself is a complete Code where this opportunity can be availed of. The benefits and the rigours of the Limitation Act are also available as per Section 53-B thereof. Apart from this correction of entries can be made under the U.P. Land Revenue Act, 1901 as applicable read with the provisions of the U.P.Z.A. & L.R. Act, 1951. The rules of natural justice have to be complied with in all cases. Nonetheless orders passed by an adjudicatory forum cannot be set aside through administrative orders.

Learned counsel for the proposed respondents and the learned Standing Counsel could not dispute the aforesaid proposition.

In view of this, the writ petition is disposed of leaving it open to the authorities to proceed to approach the appropriate authority for redressal of the grievances in relation to the entries in favour of the petitioner or the judicial orders on which reliance has been placed by them. It is made clear that the petitioner shall not be dispossessed nor her possession shall be tinkered with unless the aforesaid process is adopted and appropriate orders are passed in accordance with law.

Order Date :- 7.4.2011

Akv