Pramod Kumar vs Commissioner,Varanasi Division ...
2019 Latest Caselaw 5850 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 9
 

 
Case :- WRIT - C No. - 19771 of 2019
 

 
Petitioner :- Pramod Kumar
 
Respondent :- Commissioner,Varanasi Division And 2 Others
 
Counsel for Petitioner :- Kailash Nath Singh
 
Counsel for Respondent :- C.S.C.,Manoj Kumar Yadav
 

 
Hon'ble Ajit Kumar,J.

1. By means of the present writ petition under Article 226 of the Constitution the petitioner has challenged the order dated 28th June, 2006 passed by the Additional District Magistrate (Land-Revenue), Jaunpur in Case No.- 314 under Section 198(4) of U.P. Zamindari Abolition and Land Reforms Act, 1950 as well as the order dated 30th April, 2019 passed by the Commissioner, Varanasi Division, Varanasi.

2. The grievance of the petitioner is that the petitioner's grand father was given lease over the land in question way back in the year 1965 and thereafter he came to be recorded as bhumidhar over the land and after the death of the petitioner's grandfather and father, the name of the petitioner came to be recorded over the land. However, the authorities without giving any opportunity of hearing to the petitioner's father held that that the land was initially recorded as pond and, therefore, no notice was required to be given to the person, who is in unauthorized possession and straightway the order has been passed holding the lease to be void and directing for striking off the name of petitioner's father and restoring the land in the name of Gaon Sabha. There is further anomaly being pointed out by the learned counsel for the petitioner that father of the petitioner was alive and was recorded as bhumidhar over the land in question in the revenue records but the proceedings were drawn in the name of the petitioner and, therefore, the entire proceedings were void ab initio and the order passed by Additional District Judge (Land-Revenue) Jaunpur dated 28th June, 2006 is rendered to be non est. The petitioner preferred revision before the Commissioner and the Commissioner has concurred the findings returned by the Additional District Magistrate and dismissed the revision vide order dated 30th April, 2019.

3. Per contra, learned Standing Counsel contends that once the land has come to be found initially recorded as pond, it turned out to be a land of public utility and, therefore, the lease in respect of a public land recorded as a public utility land under Section 132 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 cannot be leased out and such a lease is liable to be rendered as void. Learned Standing Counsel has pointed out that in view of the series of the judgments of this Court and the view taken by the Apex Court in the case of Hinch Lal Tiwari no useful purpose will be served even if notice is served as outcome of the ultimate proceedings is going to be the same.

4. Having heard learned counsel for the parties and having perused the records, what I find is that proceedings have been initiated in the year 2006 under Section 198(4) of U.P. Zamindari Abolition and Land Reforms Act, 1950 only against the petitioner whereas the petitioner's father was alive and was recorded as bhumidhar over the land and, therefore, to that extent the argument of the petitioner that the proceedings are void ab initio appears to be correct.

5. Besides above, I also find that in the order passed by the Additional District Magistrate (Land-Revenue) Jaunpur dated 28th June, 2006 it has been categorically recorded that no notice was required to be issued to the tenure holder as the land was found to be recorded initially at earlier point of time in the relevant revenue record as pond.

6. In the considered opinion of the Court the view taken by the Additional District Magistrate (Land-Revenue) Jaunpur that no notice deserved to be issued to the persons who had been allotted lease where the land is a public utility land and was so recorded in the earlier point of time in the revenue records, is absolutely ill founded and deserves to be held bad in law.

7. The law is well settled that even if in unauthorized trespass is to be evicted or ejected from the public land, then the minimum requirement is the compliance of the principles of natural justice. Even in matters of administrative decision making this Court and Apex Court have held that the authorities are required to pass an order in consonance with principles of natural justice as the principle stands that nobody can be condemned unheard. In matters where quasi judicial function is being discharged by the authorities, it is all more necessary to follow these principles.

8. The principle of audi alteram partem is a cardinal rule of justice system. The Courts have ruled in the past that the justice must not only be done but must also seen to have been done. A larger Bench of the Apex Court while dealing with the petition questioning the vires of Section 314 of Bombay Municipal Corporation Act, 1888 that provided that the Commissioner, may, without notice take steps for removal of encroachments in or upon any streets, channels, drains etc., it was argued before the Apex Court that the provision was clearly ultra vires Article 21 of the Constitution as the provision was not fair and reasonable. While upholding the vires of the aforesaid provision assailed before the Court, the Court observed that Legislature intended to the power to be exercised sparingly and in cases of urgency which brook no delay and in all other cases, the Court observed that no departure from audi alteram partem rule could be presumed to have been intended. So, the Court ultimately ruled that the aforesaid section was designed only to exclude the principles of natural justice by way of exception, not as a general rule. Ratio of the judgment was that such discretion is vested only for being exercised in exceptional and unavoidable circumstances but otherwise, the Commissioner needed to exercise the power in consonance with rule of audi alteram partem. Vide paragraph 46 and 47 of the judgment in Olga Tellis and others v. Bombay Municipal Corporation and others, 1985 (3) SCC 545, the Apex Court held thus:-

"46. It was urged by Shri K.K. Singhvi on behalf of the Municipal Corporation that the Legislature may well have intended that no notice need be given in any case whatsoever because, no useful purpose could be served by issuing a notice as to why an encroachment on a public property should not be removed. We have indicated above that far from so intending, the Legislature has left it to the discretion of the Commissioner whether or not to give notice, a discretion which has to be exercised reasonably. Counsel attempted to demonstrate the practical futility of issuing the show cause notice by pointing out firstly, that the only answer which a pavement dweller, for example, can make to such a notice is that he is compelled to live on the pavement because he has no other place to go to and secondly, that it is hardly likely that in pursuance of such a notice, pavement dwellers or slum dwellers would ask for time to vacate since, on their own showing, they are compelled to occupy some pavement or slum or the other if they are evicted. It may be true to say that, in the generality of cases, persons who have committed encroachments on pavements or oh other public properties may not have an effective answer to give. It is a notorious fact of contemporary life in metropolitan cities, that no person in his senses would opt to live on a pavement or in a slum, if any other choice were available to him. Anyone who cares to have even a fleeting glance at the pavement or slum dwellings will see that they are the very hell on earth. But, though this is so, the contention of the Corporation that no notice need be given because, there can be no effective answer to it, betrays a misunderstanding of the rule of hearing, which is an important element of the principles of natural justice. The decision to dispense with notice cannot be founded upon a presumed impregnability of the proposed action. For example, in the common run of cases, a person may contend in answer to a notice under Section 314 that (i) there was, in fact, no encroachment on any public road, footpath or pavement, or (ii) the encroachment was so slight and negligible as to cause no nuisance or inconvenience to other members of the public, or (iii) time may be granted for removal of the encroachment in view of humane considerations arising out of personal, seasonal or other factors. It would not be right to assume that the Commissioner would reject these or similar other considerations without a careful application of mind. Human compassion must soften the rough edges of justice in all situations. The eviction of the pavement or slum dweller not only means his removal from the house but the destruction of the house itself. And the destruction of a dwelling house is the end of all that one holds dear in life, humbler the dwelling, greater the suffering and more intense the sense of loss.

47. The proposition that notice need not be given of a proposed action because , there can possibly be no answer to It, is contrary to the well-recognized understanding of the real import of the rule of hearing. That proposition overlooks that justice must not only be done but must manifestly be seen to be done and confuses one for the other. The appearance of injustice is the denial of justice. It is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done. Procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary action on the part of public authorities. (Kadish, "Methodology and Criteria in Due Process Adjudication - A Survey and Criticism," 66 Yale L.J. 319, 340 [1957]) The right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups, against whom decisions taken by public authorities operate, to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons. (Golberg v. Kelly 397 U.S. 254, 264-65 [1970] right of the poor to participate in public processes).

Whatever its outcome, such a hearing represents a valued human interaction in which the affected person experience at least the satisfaction of participating in the decision that vitally concerns her, and perhaps the separate satisfaction of receiving an explanation of why the decision is being made in a certain way. Both the right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome; these rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one. Justice Frankfurter captured part of this sense of procedural justice when he wrote that the "Validity and moral authority of a conclusion largely depend on the mode by which it was reached.... No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generation the feeling, so important to a popular government, that justice has been done". Joint Anti-fascist Refugee Committee v. Mc Grath 341 U.S. 123. At stake here is not Just the much-acclaimed appearance of justice but, from a perspective that treats process as intrinsically significant, the very essence of justice. (See "American Constitutional Law" by Laurence H. Tribe, Professor of Law, Harvard University (Ed. 1978, page 503).

The instrumental facet of the right of hearing consists in the means which it affords of assuring that the public rules of conduct, which result in benefits and prejudices alike, are in fact accurately and consistently followed.

It ensures that a challenged action accurately reflects the substantive rules applicable to such action; its point is less to assure participation than to use participation to assure accuracy."

9. Thus, the above exposition of law by the larger Bench of the Apex Court makes it clear that one who is going to be adversely affected is needed to be heard before the order is passed. If a person is settled over the land for a number of years and if such land at same point of time i.e. 3 or 4 decades ago was recorded as pond, in the considered opinion of the Court, the authorities are not right in evicting such persons from their settled possession over the land by one stroke of pen and that two without giving proper notice or opportunity of hearing. Exceptions are the cases that involve a kind of case of urgency where immediately eviction or ejectment of construction is a must. While it is true that in public interest a public utility land cannot be directed to be divested for private use but if an action is sought to be taken after decades or for a long passage of time to remove such persons from possession over the land, the minimum rule is that they should be given notice, reasonable opportunity of hearing to defend their claim and case before any order is passed for their eviction from the land or striking of entries standing in their name on record. Even in the case of Hinch Lal Tiwari (supra), the Apex Court has not held that the persons who are in possession should not be given notice and should not be heard. Principles enunciated in the case of Olga Tellis (supra) cannot be said to have been diluted in the case of Hinch Lal Tiwari (supra).

10. In the said case of Hinch Lal Tiwari (supra) there was long drawn litigation between the allottee and the complainant and the authority making allotment of the land coupled with the facts that on spot inspection it was detected that part of the land was still in the nature of pond. The Apex Court while referring the High Court's order impugned in the S.L.P. quoted the fact recorded in the order of High Court as under:-

"From the report of the Sub-Divisional Officer dated 3-4-2000 it is clear that the land had the character of a pond but due to passage of time most of its part became levelled. But some of the portion had still the character of a pond and during the rainy season it is covered by water. The area which is covered by water or may be covered by water in the rainy season could not be allotted as abadi site to any person."

and then proceeded to hold as under:-

"On this finding, in our view, the High Court ought to have confirmed the order of the Commissioner. However, it proceeded to hold that considering the said report the area of 10 biswas could only be allotted and the remaining five biswas of land which have still the character of a pond, could not be allotted. In our view, it is difficult to sustain the impugned order of the High Court. There is concurrent finding that a pond exists and the area covered by it varies in the rainy season. In such a case no part of it could have been allotted to anybody for construction of house building or any allied purposes."

11. However, in the present case there is no such finding coming up in the order impugned nor, the order impugned can be justified to have been passed in compliance of the principles of natural justice.

12. Admittedly, in the present case notice has not been given to the petitioner before passing the order impugned and, therefore, applying the above exposition of law it is held that the authorities have manifestly erred in passing the order without giving notice to recorded tenure holder. Further in the present case, since the proceedings initially instituted against the person who was recorded as tenure holder, the proceedings are liable to be held void ab initio and the order deserves to be held as non est.

13. The authority sitting in revision has failed to look into this above aspect of the matter and, therefore, the order passed by the Commissioner, Varanasi Division Varanasi dated 30th April, 2019 affirming the order passed by the Additional District Magistrate (Land-Revenue), Jaunpur can also not be sustained in law and deserves to be set aside.

14. At this stage, learned Standing Counsel submits that that it may be left open for the authorities to reinitiate the proceedings in accordance with law, if they so desire and if they find it to be necessary in the interest of public.

15. I am of the opinion that in all cases including the present case if the authorities after inquiry find that a person is in possession over the land recorded as a public utility land, in an unauthorized way and land still have the character of land so recorded or even otherwise such land deserve to be protected, it is always open for the competent authority to proceed against such unauthorized occupant in accordance with law and in the light of the observations made hereinabove in this judgment.

16. In the result, the order dated 28th June, 2006 passed by the Additional District Magistrate (Land-Revenue) Jaunpur in case No. 314 under Section 198(4) of the U.P.Z.A.& L.R. Act, 1950 filed as Annexure-2 to the writ petition and the order passed by the Commissioner Varanasi Division Varanasi dated 30th April, 2019 in revision No. 00298 of 2019 are hereby set aside.

17. The writ petition is allowed to the extent indicated hereinabove.

Order Date :- 9.7.2019

Atmesh