Mohammad Hanif And Ors. vs State Of U.P. And Ors.
2013 Latest Caselaw 1450 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 6
 

 
Case :- WRIT - C No. - 14972 of 2013
 
Petitioner :- Mohammad Hanif And Ors.
 
Respondent :- State Of U.P. And Ors.
 
Petitioner Counsel :- Hari Om Yadav
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Ran Vijai Singh,J.

Heard Sri Hari Om Yadav, learned counsel for the petitioners and learned Standing Counsel appearing for the State respondents.

Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the order dated 25.06.2012 passed by respondent no. 2/ Tahsildar, Sadar, District Bulandshahar.

On 15.03.2013, this Court directed the learned Standing Counsel to seek instructions in this matter apprising the Court that under which provision of law, the impugned order has been passed on an application without there being any notice to the affected party.

Dr. Madhu Tandon, learned Standing Counsel appearing for the State has submitted that the entry of the petitioners' name has been expunged from the revenue record as the same was recorded without there being any valid title. Further, they have no right / title over the land in dispute and the writ petition deserves to be dismissed.

On the contrary, learned counsel for the petitioners submits that the impugned order has been passed on the application of the respondent no. 3 without there being any notice to the petitioners. In his submissions, it is settled law that any order which leads to civil consequences must be passed in conformity with the principles of natural justice and procedure adopted must be just, fair and reasonable.

I have heard learned counsel for the parties.

For appreciating the controversy, it would be useful to go through the impugned order dated 25.06.2012 passed by respondent No. 2, which is reproduced herein under:-

"vkj- ds-

 
xzke vkSjaxkckn dh [krkSuh [krk ua0 1224 ij ikfjr vkns'k fnukad 15-06-2012 fujLr gks rFkk Hkwfe iwoZ dh Hkk¡fr vfHkys[k esa vafdr gS A
 
                                 g0 viBuh;                                										 25-06-2012"
 
	From the perusal of the order impugned, it is apparent on the face of it that the order is not only cryptic but the same has been passed without affording an opportunity of hearing to the petitioners and without quoting any provision of law.
 

Learned Standing Counsel appearing for the State could not show from the perusal of the order that before passing the impugned order any opportunity was offered to the petitioners. The Apex Court in the case of Maneka Ghandhi Vs. Union of India, AIR 1978 SC 597, Union of India vs. Tulsi Ram Patel 1985 (3) SCC 398, I.J. Rao Assistant Collector of Customs vs. Bibhuti Bagh 1989 (3) SCC 202, Canara Bank vs. V.K. Awasthi 2005 (6) SCC 321, Muzeeb Vs. Deputy Director of Consolidation and others 1996 (87) RD 66 and Chaturgun vs. State of U.P. 2005 (2) AWC 1256 observed that an order which leads to civil consequences must be passed in conformity with the principles of natural justice.

Otherwise also, it is apparent from the perusal of the impugned order that no reason has been recorded, while expunging the names of the petitioners from the revenue records. The Apex court in Sant Lal Gupta and others vs. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336 has observed as under:

"27.....The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/ unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. [Vide: State of Orissa v. Dhaniram Luhar AIR 2004 SC 1794; State of Rajasthan v. Sohan Lal & Ors. (2004) 5 SCC 573; Vishnu Dev Sharma v. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. v. Sales Tax Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C. v. Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal v. State of Haryana & Ors. (2009) 3 SCC 258; State of Himachal Pradesh v. Sada Ram & Anr. (2009) 4 SCC 422; and The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors., AIR 2010 SC 1285)."

In view of the above legal position and undisputed facts that the order impugned is not only cryptic but has been passed without affording an opportunity of hearing, it cannot be legally sustained.

The writ petition succeeds and is allowed. The impugned order dated 25.06.2012 passed by respondent no. 2/ Tahsildar, Sadar, District Bulandshahar is hereby quashed.

However, allowing of this writ petition will not preclude the respondent to proceed with the matter in accordance with law.

Sitting in this jurisdiction, it is being constantly noticed that the revenue authorities are passing this type of orders frequently; some time on an application filed by a person and some time, in suo motu proceeding, which extinguishes / creates the right of a tenure holder, without there being any notice to the affected party and without assigning any reason for the same.

These types of orders not only affect the tenure holders, but the process of the courts is also availed by challenging these orders and repeatedly, this Court is quashing such types of orders. In this process, sometime counter affidavit is called for, sometime officers are summoned and it is thereafter, orders are being quashed, but this will not serve the very purpose of the common people. The Officers of the State and the subject of the State both are governed under the rule of law. No one can be permitted to take law in his own hand and no one can be permitted to proceed in an autocratic manner, as it is the welfare State and it is the government of the people. There are complete mechanism prescribed either by the Legislature by enacting Acts or by making Rule or issuing government orders for handling the problems. The authorities are expected to proceed in accordance with law. The consequence to not proceed in accordance with law, not only affects the tenure holders, but it also puts pressure on the authorities/courts and also affects the public exchequer.

Learned Standing Counsel always argue that there are no basis for recording the names of such persons in the revenue records and that is why entries are being expunged. It is also being noticed that these revenue entries are being permitted to continue years after years; in some cases, it is permitted to continue for more than 40 years. It is something which is beyond understanding that how these kinds of illegal entries are permitted to be continued by the revenue authorities for such a long duration; why this has not been noticed and appropriate action has been taken at the appropriate levels; and whenever the action is taken, it is always unilateral in hot haste manner without taking any action against the erring officers, who are involved in the process of wrong recording of the names in the revenue records. Without their collusion, no one can dare to get entered their names in the revenue records without there being any valid titles. The records are always kept in the custody of the revenue authorities and if the tampering is made in their records, it can only be done either by the officers of the revenue department or with the collusion with the officials of the department with whom records are kept.

In view of the observation made by the Apex Court in Anil Baipadithaya and Others Vs. State of Karnataka and Others AIR 1996 SC 432, it is expected that action is not only to be taken against the persons, but also against those who have been found involved in this process. Assuming the entries are bogus and forged, as alleged, but the same are of long duration, the same should not be expunged without any discussion and without any notice, unless it is uncontroverted. It is very often said justice is not only to be done, but it appears to have been done.

Taking note of that, the Principal Secretary, Revenue, U.P. at Lucknow is directed to issue a circular in this regard requiring the revenue officers not to pass such types of cryptic orders without there being any notice and without assigning any reason. He is also directed to make a penal provision in the aforesaid circular for the erring officials, in whose connivance names of the persons who have no title are recorded and are permitted to continue for a long period. He is also directed either to file compliance report before this Court within a period of two months or give the reasons for not complying the same.

The Registry of this Court is directed to intimate this order to the Principal Secretary, Revenue, U.P. at Lucknow for compliance.

List this matter, only for having the version of the Principal Secretary, Revenue, U.P. at Lucknow, after three months.

Order Date :- 29.4.2013

v.k.updh./amit