Allahabad High Court
Smt. Kailasho Devi vs D.D.C. And Others on 20 September, 2012
Bench: Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 18
Case :- WRIT - B No. - 48413 of 2012
Petitioner :- Smt. Kailasho Devi
Respondent :- D.D.C. And Others
Petitioner Counsel :- Shivaji Singh Sisodia
Respondent Counsel :- C.S.C.,Devendra Saini
Hon'ble Ran Vijai Singh,J.
Through this writ petition, the petitioner has prayed for issuing writ of certiorari quashing the order dated 1.6.2012 passed by the Deputy Director of Consolidation, Bareilly in revision no. 309 of 2012 (Kailasho Devi Vs. Khushruddin and Others) as well as the order dated 4.4.2012 passed by the Consolidation Officer in case no. 123/2011-12 (Khushruddin Vs. State).
Heard Sri Shivaji Singh Sisodia, learned counsel for the petitioner, Sri Devendra Saini, learned counsel for respondent no. 3 and learned Standing Counsel.
The petitioner herein, it appears, has purchased land of Khata no. 27 situated in Village Gopalpur Nagaria District Bareilly through registered sale deed from respondent no. 4. Respondent no. 4 was the recorded tenure holder of the aforesaid Khata. Originally the owner of the land was late Ashraf Ali. After the death of Ashraf Ali, respondent no. 4, claiming himself as son of Ashraf Ali, has filed an application for mutation of his name over the said land and the Consolidation Officer vide order dated 7.1.1988 had passed an order for recording the name of Nusrat Ali.
The respondents herein have filed highly time barred appeal before the Settlement Officer of Consolidation, being appeal no. 213 / 2011-12 (Khushruddin Vs. Nusrat Ali and Others). The Settlement Officer of Consolidation, after condoning the delay, has allowed the appeal and remanded the matter before the Consolidation Officer for passing fresh order. After the remand, the Consolidation Officer has framed as many as four issues, which are reproduced hereinunder:
"1& D;k [kq'k#}hu olh;rukek fnukad 05-06-1980 o fojklr ds vk/kkj ij v'kjQ [kka iq= esgrkc [kka ds okfjl gS A
2& D;k uqljr vyh v'kjQ [kka ds yMds gS ;fn gka rks izHkko A
3& D;k dSyk'kks nsoh dks cSukek djus dk gd uqljr vyh dks Fkk ;fn gka rks izHkkoA
4& D;k dSyk'kks nsoh dk cSukek fcuk gd ,oa vf/kdkj ds fd;k x;k gS] ;fn gka rks izHkko A"
The issue no. 2 was decided against the petitioner by holding that Nusrat Ali, the respondent no. 4 herein, is not son of Ashraf Ali and the issue no. 1 was decided in favour of respondent no. 3, holding that the Khushruddin is the real Bhanja of Ashraf Ali, therefore, he was entitled to succeed the land being a valid successor as well as on account of the Will executed by the Ashraf Ali in his favour, which was duly proved by the witnesses. After deciding the issue nos. 1 and 2, the Consolidation Officer has found that since Nusrat Ali was not the son of Ashraf Ali, therefore, he had no right to execute the sale deed in favour of the petitioner and the sale deed, if any, is void abinitio.
Challenging this order, the petitioner herein as filed revision on the ground that no proper opportunity of hearing was given to the petitioner by the Consolidation Officer while deciding the case, which amounts to breach of natural justice. The Deputy Director of Consolidation has recorded a finding that there is nothing on the record from which it can be inferred that the petitioner is the son of Ashraf Ali. It is also recorded that the petitioner herein has filed objection before the Consolidation Officer and on that basis, issues were framed and the petitioner has throughout cooperated, therefore, it cannot be said that no opportunity was offered to the petitioner.
Otherwise also, denial of proper opportunity falls in the ambit of breach of natural justice, but it is also equally settled that the principle of natural justice is not a ritual which should be offered in each and every case, as under a given circumstance even after giving an opportunity of hearing, the same result is likely to come and the order has been passed without opportunity of hearing such order should not be interfered with merely for the reason that the opportunity of hearing was not afforded. The Apex Court in the case of Malloch Vs. Aberdeen Corporation (1971) 2 All ER 1278 has held that the breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute but relief can be refused when the case of the applicant is not one of 10 " real substance" or that there is no substantial possibility of his success or that the result will not be different even if natural justice is followed. The same view has been reiterated in the case of Glynn Vs. Keele University, Cinnamond Vs. British Airports Authority, not only in England but here also the Supreme Court in the case of S.L.Kapoor Vs. Jagmohan and others reported in ( 1980) 4 SCC 379 has held as under:-
" In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal."
The same view has been reiterated in M.C.Mehta Vs Union of India and others (1999)6 SCC 237, Aligarh Muslim University and others Vs. Mansoor Ali Khan (2000) 7 SCC 529 and Manish Kumar Vs. State of U.P. and Others, 2010 (9) ADJ 762 and many other decisions of Apex Court as well as of this Court.
On being confronted as to whether there is any material on the record, indicating that Nusrat Ali happens to be the son of late Ashraf Ali, learned counsel for the petitioner could not show me any material from the record, from which it can be said that the finding recorded by the Deputy Director of Consolidation is, in any manner, perverse.
Since a concurrent finding of fact has been recorded by the Consolidation Officer as well as the Deputy Director of Consolidation, holding that Nusrat Ali is not the son of Ashraf Ali, therefore, the finding of fact cannot be interfered with under Article 226 of the Constitution of India. No other illegality or infirmity has been pointed out in the impugned judgments.
In view of that, no interference is called for. The writ petition is dismissed.
At this juncture, learned counsel for the petitioner Sri Sisodia has submitted that the petitioner is the bonafide purchaser and he has purchased the land after being sure that the respondent no. 4 herein is the recorded tenure holder; that too, by the order of Consolidation Officer, therefore, appropriate relief be given to the petitioner.
In that regard, it is observed that in case the petitioner seeks any other remedy for recovery of money, etc., which was paid towards the consideration, the same may be considered and decided by the court competent on its own merit in accordance with law.
Order Date :- 20.9.2012
Amit Mishra
(Ran Vijai Singh,J.)
