Ragho vs State Of U.P. And 3 Others
2019 Latest Caselaw 5423 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 4
 
                                                                                                               A.F.R.
 
Case :- WRIT - C No. - 627 of 2016
 

 
Petitioner :- Ragho
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Gajala Srivastava,Manish
 
Counsel for Respondent :- C.S.C.,Bimla Prasad,Manoj Kumar Kushwaha,Vishal Kumar Upadhyay
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Prakash Padia,J.

(Per- Hon'ble Prakash Padia,J. )

1. Heard learned counsel for the petitioner, learned Standing Counsel for respondents no. 1 and 2, Sri Vishal Kumar Upadhyay, learned counsel for respondent no. 3 and Sri Bimla Prasad, learned counsel for respondent no. 4. With the consent of the learned counsel for the parties this petition is disposed of finally at the admission stage itself.

2. The petitioner has preferred the present writ petition challenging the order dated 1.12.2015 passed by the Uttar Pradesh Scheduled Caste and Schedules Tribes Commission, Lucknow-respondent no. 3 and consequential notice dated 31.12.2015 issued by the Deputy Collector, Sadar, Varanasi, copies of which are appended as Annexures 7 and 8 to the writ petition.

3. The facts in brief, as narrated in the writ petition are that the petitioner is the Bhumidhar of Plot No. 398/3 area 0.020 Hectare situated in Mauja Shivdaspur Pargana-Dehat Amanat, District Varanasi and is in possession over the aforesaid plot in question. The aforesaid plot was purchased by the petitioner from the erstwhile owner through a sale deed dated 21.11.1976. Subsequently, the petitioner constructed his house over plots no. 398/1 and 398/3 and the rest of the land was being used as Abadi.

4. The respondent no.4 viz. Ram Ji Das, also claiming himself to be the owner of aforesaid plot No. 398/1, area 278.3 Sq. Meter has filed an application under Section 145 of Criminal Procedure Code. On the aforesaid application a case was registered as Case No. 15/17 of 2013 (Ramji Das Versus Ragho Prasad). In the said case the petitioner has also filed his objection and after hearing both the parties Addl. City Magistrate-I Varanasi found that over the disputed plot house of the petitioner is constructed and rest of the land is being used as Abadi by the petitioner.

5. Thereafter a suit being Case No. 73 of 2000 was filed by Ram Vilas against Ragho Prasad and several other persons in respect of Plot No.398/1 for the relief that respondents may be directed not to obstruct him from using of the plot as Rasta. The aforesaid suit was dismissed in default on 15.4.2011 and the said order has become final.

6. Apart from the above, the petitioner has also filed a suit being Case No. 4 of 2016 (Ragho Prasad Singh Vs. Smt. Shanti Devi and another) for specific performance as well for permanent injunction in the court of Civil Judge (Jr. Division) Hawaii Varanasi. In the aforesaid suit Shanti Devi, wife of Ram Vilas as well as Ram Ji Das (respondent no. 4) were made parties.

7. It is contended by learned counsel for the petitioner that the dispute of title is involved between the parties and till date respondent no. 4 is not able to prove his title before the competent court. It is further contended that when respondent no. 4 was not able to prove his title over the land in question, only in order to harass the petitioner, he filed an application in the shape of a complaint before the Commission for the SC and ST, Lucknow-respondent no. 3. On the said application notices were issued by the Commission to the Collector and the S.S.P. Varanasi for eviction of the petitioner. Pursuant to the aforesaid directions issued by respondent no. 3, the respondent no.2-Deputy Collector Sadar, Varanasi issued notice to the petitioner for his eviction over the plot in question, i.e., Plot No.398/1. At this point of time, challenging the decision taken by the respondent no. 3- Commission for the SC and ST, Lucknow dated 1.12.2015 and the order passed therein by the respondent no. 2-Deputy Collector Sadar, Varanasi vide its letter dated 31.12.2015 the petitioner has preferred the present writ petition.

8. It is contended by learned counsel for the petitioner that the respondents no. 3 and 2 have no jurisdiction to decide the title. It is further contended that the aforesaid respondents have absolutely no jurisdiction to pass any order to dispossess the petitioner. It is further contended that under Article 300-A of the Constitution protection of the property was granted. It is further contented that before passing the aforesaid order no notice or opportunity whatsoever has been given to the petitioner and since the orders passed are in complete violation of Principle of Natural Justice they are liable to be set aside.

9. When the writ petition was filed, by a detailed order passed by co-ordinate Bench of this Court the impugned orders dated 1.12.2015 and 31.12.2015 (Annexures- 7 and 8 of the writ petition) were kept in abeyance.

10. In the counter affidavit filed by respondent no. 4 it is contended that respondent no.3 is fully empowered to pass the order of eviction under the Uttar Pradesh Commission for Scheduled Caste and Scheduled Tribes Act, 1995. It is further contended that the orders were rightly passed by respondents no. 3 and 2 for eviction of the petitioner from the land in question.

11. Another counter affidavit was filed by respondent no. 3- Uttar Pradesh Commission for Scheduled Caste and Scheduled Tribes, Lucknow stating therein that the respondent Commission is fully empowered to issue notice to investigate the matter. It is contended that Section 12 of the Act gives power to the Commission to investigate the matter.

12. In the rejoinder affidavit the petitioner denied the facts contained in the counter affidavits. It is contended that powers provided under Section 11 of the Uttar Pradesh Commission for Scheduled Caste and Scheduled Tribes Act, 1995 confers only certain functions and powers upon the Commission. In support of above submission learned counsel for the petitioner placed reliance on a judgment dated 5.5.2017 given by co-ordinate Bench of this Court in Writ C No.8490 of 2017 (Shyam Lal and 14 others Vs. State of U.P. and 13 others) which is quoted below-

"The order dated 09.01.2017 passed by the U.P. Scheduled Caste and Scheduled Tribes (Commission) i.e. respondent No.2 requiring the District Magistrate, Varanasi to put the complainants, namely Sri Hari, Manhgoo and Manohar in possession of the property through S.D.M. with the help of Police force, is challenged on the ground that it is beyond its authority and Section 11 of the Uttar Pradesh Commission for the SC and ST Act, 1995 confers only certain functions and powers upon Commission, which is quoted as under:

"FUNCTIONS AND POWERS OF THE COMMISSION"

11. Duties and functions of the commission.-

(1) It shall be the duty of the Commission-

a) to investigate and monitor all matters relating to the safeguards, provided for the Scheduled Castes and Scheduled Tribes under the Constitution or under any other law, for the time being in force or under any order of the State Government and to evaluate the working of such safeguards;

(b) to enquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes;(c) to participate and advice on the planning process of Socioeconomic development of the Scheduled Castes and Scheduled Tribes and to evaluate the progress of their development;

(d) to present to the State Government annually and at such other time as the Commission may deem first, reports upon the working of those safeguard;

(e) to make in such reports recommendations as to the measures that should be taken by the State Government for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes and Scheduled Tribes; and

(f) to discharge such other functions in relation to the protection, welfare, development and advancement of the scheduled Castes and Scheduled Tribes as may be referred to it by the State Government.

(2) The State Government shall cause the reports of the Commission to be laid before each House of the State Legislature along with a memorandum explaining the action taken or proposed to be taken on the recommendations and the reasons for the non-acceptance, if any, of any of such recommendations."

It is apparent from simple reading of the same that the commission cannot issue direction to the District Magistrate concerned to put the complainants in possession and forcefully evict the person in settled possession over the property in dispute with the help of Police. Eviction of even an unauthorized occupant can take place under as per the procedure prescribed by law.

We in full agreement with the view expressed therein and see no reason to take any different view. For all the aforesaid reasons, the order passed by the Commission cannot be sustained. It is hereby set aside.

The writ petition is hereby allowed."

13. It appears from the record of the case that criminal and civil litigation were filed by the parties in the competent court in order to prove their title. When respondent no. 4 was not able to obtain any favourable order in his favour he made a complaint before the Commission on 2.11.2015. On the said complaint order was passed by the Commission on 1.12.2015 directing the District Magistrate and Sr. Superintendent of Police, Varanasi to remove illegal possession of the petitioner from the land in question and provide possession of the said land to the complainant-respondent no. 4 in the present petition. After the aforesaid order a consequential order was passed by the Deputy Collector Sadar, Varanasi-respondent no. 2 on 31.12.2015 directing the petitioner to remove his possession over the land in question within a period of one week and handover the peaceful possession of same to the complainant otherwise action will be taken against him.

14. Powers conferred upon the Commission under Section 11 of the Act of 1995. Section 11 of the Act of 1995 have already been quoted in the judgment of Shayam Lal (Supra). From perusal of the same it is clear that the commission cannot issue direction to the District Magistrate and Senior Superintendent of Police to forcefully evict the petitioner from his property in question.

15. The Commission is clothed with the power of summoning and enforcing the attendance of any person for a limited purpose as contained in Article 338 of the Constitution of India. By virtue of powers confer under Article 338 of the Constitution the Commission does not become Civil Court which does not have power to adjudicate the rights of the parties in order to issue any direction or injunction on merits.

16. It is clear from the record that the entire proceedings initiated by the Commission is wholly arbitrary, unjust and illegal and is in complete violation of the law laid down by the Apex Court in case of All Indian Overseas Bank Vs. S.C. And S.T. Employees' Welfare Association and others Vs. Union of India and others, 1996(6) SCC 606 as well as U.P. State Handloom Corporation and another Vs. State of U.P. and another, 2012(6) ADJ 42.

17. In case of All India Overseas Bank (Supra) it was held by the Supreme Court that the Commission does not have any power to issue interim injunction. Relevant paragraphs 10 and 11 of the aforesaid judgment is quoted below-

10. Interestingly, here, in clause 8 of Article 338, the words used are "the Commission shall..... have all the powers of the Civil Court trying a suit." But the words "all the powers of a Civil Court" have to be exercised "while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause 5". All the procedural powers of a Civil Court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a Civil Court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of clause 8 of Article 338 of the Constitution.

11. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order of the type found in the letter dated March 4, 1993. The order itself being bad for want of jurisdiction, all other questions and considerations raised in the appeal are redundant. The High Court was justified in taking the view it did. The appeal is dismissed. No costs."

18. In the case of U.P. State Handloom Corporation (Supra) also the Division Bench of this Court had an occasion to consider the scope of powers of the Commission under Article 338 of the Constitution of India and held as under-

"..........The powers to summoning or enforcing attendance of any person and examining him on oath; requiring the discovery and production of any document' receiving evidence on affidavits' requisitioning any public record or copy thereof from any Court or office'; issuing commissions for the examination of witnesses and documents' and any other matter that may be prescribed by Section 12 of the State Act are for the purposes of facilitating investigation and enquiries. These powers are not for issuing any orders or decrees to be implemented by the public authorities. If, after making investigation and enquiry, the National Commission or State Commission for the Scheduled Castes and Scheduled Tribes comes to any conclusion with regard to atrocities committed, or for ensuring socio-economic upliftment of the members of the Scheduled Castes and Scheduled Tribes, the Commission can make a recommendation to the President /Governor, as the case may be, to give due consideration for the benefit of the members of the community."

19. The power to summon or enforce attendance of any person and examine him on oath, as available to the Commission under Article 338 (8), is the same as is available to a civil court while trying a suit, as such, the exercise of such power is to be guided by the provisions contained and principles enshrined under Order XVI of the Code of Civil Procedure especially Rule 1 & 14 thereof. Therefore, before summoning a person, the Commission is required to apply its mind as to the necessity thereof. Such summons for personal appearance should not be issued mechanically. The Commission has to examine the facts of each case and if it is found that such appearance of a person is necessary for the purpose of inquiry or investigation, only then the summons should be issued. It would be appropriate that the reasons and the purpose for issuance of such summons is mentioned. Under Order XVI Rule 1, the concerned party desirous of obtaining any summons for the attendance of any person is required to file an application stating therein the purpose for which the witness is proposed to be summoned.

20. A Division Bench of the Delhi High Court in the case of Professor Ramesh Chandra Vs. University of Delhi and another LPA No.280 of 2007 decided on 4.5.2007, was of the view that from the reading of Clause 6-8 of Article 338 of the Constitution of India it is clear that the reports made by the Commission are mandatory in nature and cannot equated with the decree passed by the civil court, which are binding on the parties. The relevant portion of the aforesaid judgement is reproduced hereinbelow:-

"6. It is not possible to agree with the learned senior counsel that the Commission under Article 338 of the Constitution of India is an adjudicatory body which can issue binding directions or injunction orders. ....

.....While conferring limited powers of a civil court for some purposes, Article 338 has not given the Commission, the power to adjudicate and pass binding and executable decrees like a civil court.

...It is clear from the reading of Clauses 6-8 that the reports made by the Commission are recommendatory in nature and cannot be equated with decrees/orders passed by Civil Courts which are binding on the parties and can be enforced and executed. It cannot be said that the reports of the said Commission are alternative to the hierarchical judicial system envisaged under the Constitution of India."

21. Karnataka High Court in Karnataka Antibiotics and Another Vs National Commission for SC and ST and others, ILR 2008 KAR 2205 held that the Commission is not empowered under Article 228 of the Constitution either to set aside a concluded inquiry or the order of penalty or the order of Appellate Authority. The relevant portion of the aforesaid judgment reads as under-

"12. Article 338 of Constitution of India specifies for constitution of National Commission for Schedule Castes and Schedule Tribes. The Supreme Court in All India Indian Overseas Bank SC and ST employees' welfare association v. Union of India (Supra) held that 'all the procedural powers of civil court given to the National Commission for Schedule Caste and Schedule Tribe by Article 338(8) of the Constitution of India are for the limited purpose of investigating any matter under Article 338(5)(a) or inquiring into any complaint, under 338(5)(b). The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of Clause (8) of Article 338 of the Constitution. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order of the type found in the letter dated 4.3.1993 directing the Bank to stop the promotion process pending further investigation and final verdict in the matter'.

22. The Supreme Court in the case of the Union of India vs. Orient Engg. & Commercial Co. Ltd. and another reported in [(1978) 1 SCC 10] had the occasion to consider the requirements of Order XVI Rule 1 C.P.C. and it observed as under:

"3. In this case, a list of witnesses was furnished by the 1st respondent and the Registrar of the High Court, in the routine course, granted summons, perhaps not adverting as to why the arbitrator himself was being summoned. That was more or less mechanical is evident from the fact that the reason given for citing the arbitrator is the omnibus purpose of proving the case of the party-not the specific ground to be made out. We should expect application of the mind of the Registrar to the particular facts to be established by a witness before the coercive process of the court is used. It is seen that the learned Judge before whom objection was taken under s. 151 C.P.C. to the summons to the arbitrator dismissed the petition on the score that he saw no ground to refuse to summon the arbitrator as a witness. The approach should have been the other way round. When an arbitrator has given an award, if grounds justifying his being called as a witness are affirmatively made out, the court may exercise its power, otherwise not. It is not right that every one,who is included in the witness list is automatically summoned; but the true rule is that, if grounds are made out for summoning a witness he will be called; not if the demand is belated, vexatious or frivolous. Thus the court also has not approached the question from the proper perspective. If arbitrators are summoned mindlessly whenever applications for setting aside the award are enquired into, there will be few to undertake the job. The same principle holds good even if the prayer is for modification or for remission of the award. The short point is that the court must realise that its process should be used sparingly and after careful deliberation, if the arbitrator should be brought into the witness box. In no case can he be summoned merely to show how he arrived at the conclusions he did. In the present case, we have been told that the arbitrator had gone wrong in his calculation and this had to be extracted from his mouth by being examined or cross-examined. We do not think that every Munsif and every Judge, every Commissioner and every arbitrator has to undergo a cross-examination before his judgment or award can be upheld by the appellate court. How vicious such an approach would be is apparent on the slightest reflection.

4. Of course, if a party has a case of mala fides and makes out prima facie that it is not a frivolous charge or has other reasonably relevant matters to be brought out the court may, in given circumstances, exercise its power to summon even an arbitrator, because nobody is beyond the reach of truth or trial by Court. In the present case, after having heard counsel on both sides, we are not satisfied that on the present material there is justification for the examination of the arbitrator."

23. A Division Bench of this Court in the case of Chitranjan Singh vs Chandra Bhushan Pandey reported in 1998 All.L.J. 134 while dealing with a contempt proceeding considered the necessity of summoning a person for examination and after referring to the provisions of Order XVI Rule 14 C.P.C., held that a special case has to be made out even under Order XVI, Rule 14, C.P.C., for summoning witnesses as Court witnesses.

24. It is admitted situation that all remedial forum have been exhausted by the respondent no. 4 and without disclosing all these material facts, he proceeded to file a complaint before the Commission and the same was entertained and without giving any notice and opportunity to the petitioner, the commission issued directions to the District Magistrate and Senior Superintendent of Police to evict the petitioner forcefully from his land in question.

25. Apart from the same aforesaid order was passed by the Commission without providing any notice or opportunity to the petitioner. The Supreme Court in case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Vs. M/s Shukla and Brothers reported at 2010 AIR SCW 3277 dealt with the principles of law while exercising power of judicial review on administrative action. It was held by the Supreme Court in the aforesaid case that the doctrine of audi alteram partem has three basic essentials-

i) A person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard.

ii) The concerned authority should provide a fair and transparent procedure.

iii) The authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order.

Paragraph 9 of the aforesaid judgment is quoted below-

9. The increasing institution of cases in all Courts in India and its resultant burden upon the Courts has invited attention of all concerned in the justice administration system. Despite heavy quantum of cases in Courts, in our view, it would neither be permissible nor possible to state as a principle of law, that while exercising power of judicial review on administrative action and more particularly judgment of courts in appeal before the higher Court, providing of reasons can never be dispensed with. The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard. Secondly, the concerned authority should provide a fair and transparent procedure and lastly, the authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order. This has been uniformly applied by courts in India and abroad."

26. In view of the same,we are of the considered view that once respondent no. 4 had already exhausted all remedial forum then he had no right to approach and make complaint in question against the petitioner regarding eviction of the petitioner from his land. Moreover in the instant case the grievance which has been raised as complained by respondent no. 4 before the commission is not at all maintainable and the same is not within the ambit and scope of the Commission to proceed in the matter.

27. For all the aforesaid reasons, the order dated 1.12.2015 passed by the Uttar Pradesh Scheduled Caste and Scheduled Tribes Commission, Lucknow-respondent no. 3 and consequential notice dated 31.12.2015 issued by the Deputy Collector, Sadar, Varanasi, cannot be sustained. They are is hereby set aside.

28. The writ petition is hereby allowed.

Order Date :- 2.7.2019

M.A.Ansari