Sarju Deen And Another vs Additional Commissioner, ...
2023 Latest Caselaw 20103 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:50885
 
Court No. - 18
 

 
Case :- WRIT - C No. - 3572 of 2023
 

 
Petitioner :- Sarju Deen And Another
 
Respondent :- Additional Commissioner, Administration Ii, Devi Patan Mandal, Gonda And Others
 
Counsel for Petitioner :- Ved Prakash Shukla,Rama Kant Dixit
 
Counsel for Respondent :- C.S.C.,Pankaj Gupta
 

 
Hon'ble Saurabh Lavania,J.

Heard.

By means of present petition, the petitioners have assailed the order dated 27.01.2023 passed by opposite party no. 1-Additional Commissioner, Administration II, Devi Patan Mandal, Gonda and also the order dated 24.08.2009 passed by opposite party no. 2-Sub-District Magistrate Mankapur, District-Gonda, wherebythe long standing entry in revenue record, which was in favour of petitioners, was set aside.

The main ground of challenging the impugned order dated 27.01.2023 and also the order dated 24.08.2009 is to the effect that no opportunity of hearing was provided to the petitioners before passing the order impugned by the opposite party no.1 and opposite party no.2.

Learned Counsel for the petitioner submitted that the law regarding providing an opportunity of hearing to the concerned before passing an adverse order related to entry in revenue record is settled and according to same before passing an order for expunging the long standing entry, the opportunity of hearing should be provided to affected person. In support of his submission he has placed reliance on the following judgments:-

1- 2005 SCC OnLine All 1756 (Chaturgun and Others Vs. State of U.P. and Others). Relevant paragraphs of the judgment are as under :

4. This may also happen in other such cases where defendant considers his case weak. However, denial of opportunity of hearing is no solution to this problem. In the said authority reliance upon an earlier authority of Board of Revenue reported in 1991 RD 48 (Hindi) has also been placed. In my opinion the aforesaid and other similar authorities of Board of Revenue do not lay down correct law. As far as the aforesaid authority of the Supreme Court is concerned in this regard it is also important to note that subsequently none of the affected persons came forward with the allegation that the order of the High Court was not fake but genuine. In the aforesaid authority of the Supreme Court when original file of the High Court was itself before the Supreme Court then there was not the remotest possibility of the order of the High Court being genuine.

5. Whether an entry in the revenue record is fake or fraudulent is a question of fact and can be found to be proved like any other fact only after providing opportunity of hearing to the parties concerned and likely to be affected by the ultimate order/judgment. It is correct that action taken on the basis of fraud has to be set aside and any entry on the basis of fake order has to be expunged. (Vide United India Insurance Co. v. Rajendra Singh, (2000) 3 SCC 581 : AIR 2000 SC 1165 : (2000 All LJ 849) (para 3) wherein it has been held (approved) that "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unrevels every thing"). However, finding in respect of fraud cannot be recorded ex-parte. The Supreme Court in (1994) 1 SCC 502 :AIR 1994 SC 626, Svenska Handelsbanken v.India Charge Chromeplacing reliance uponA.L.N. Narayanan Chettiyarv.Official Assignee, AIR 1941 PC 93 held in para 44 as under:--

"fraud like any other charge of a criminal proceedings, must be established beyond reasonable doubt.'A finding as to fraud cannot be based on suspicion and conjecture."

6.In the following authorities the Supreme Court has held that even before passing administrative orders affecting rights of parties opportunity of hearing shall be granted:-

1.(1997) 5 SCC 10: AIR 1997 SC 2298,Ashokv.Union of India(It was a case of ban of particular insecticides).

2.(1999) 4 SCC 511: AIR 1999 SC 2169,Sahi Ramv.Awtar Singh(It was a case of mining lease)

3.(2001) 8 SCC 604: AIR 2001 SC 3707 : (2001 All LJ 2440)G. Pharmaceuticalsv.State of U.P.(It was a case of black listing of contractor)

4.(2002) 9 SCC 760: AIR 2002 SC 2423 : (2002 All LJ 1643)H.A. Shakoorv.Union of India(It was a case of reduction of category of a contractor).

5.(1996) 8 SCC 280: AIR 1997 SC 249,Director General of Policev.Mriytunjay Sarkar(In this case constables were discharged from service on the ground that they produced a fake list from Employment Exchange without providing opportunity of hearing. Supreme Court approved the order of High Court setting aside discharge order on the ground of denial of opportunity of hearing.)

6.(2001) 6 SCC 380: AIR 2001 SC 1851,All India S.C. and S.T. Employees Assocn.v.A Arthur Jeen(In this case hundreds of employees were affected hence Supreme Court held that they might be served in representative capacity).

7.(2004) 7 SCC 68: AIR 2004 SC 4057 (para 76)Godawat Pan Masala Productsv.Union of India(In this case it was held that notification prohibiting manufacture and sale etc. of pan masala and gutka was bad in law as it had been issued without providing opportunity to the manufacturers of meeting the facts relied upon in the notification in respect of injurious effects of pan masala and gutka.)

7.(2003) 4 SCC 557: AIR 2003 SC 2041,Canara Bankv.S.D. Das(In this authority several principles of natural justice expressed in Latin words have been discussed in detail giving their history (since 1215), scope and applicability.

Regarding first principle of natural justice that no person shall be punished unheard (audi alteram partem) it has been held that if appellate authority (it was a case of punishment of an employee) grants post decisional hearing then it may be sufficient compliance of requirement of hearing. In this regard reference has been made to(1990) 1 SCC 613: AIR 1990 SC 1480,C.L. Sahuv.Union of India(Concept of useless formality theory has also been adverted to in para 22 but no final opinion in that regard has been expressed).

8.Accordingly it is held that whenever an entry in the revenue record is to be cancelled and substituted particularly when the entry is continuing for more than a year, notice must be given to the party in whose favour entry stands even if prima facie authority/Court concerned (i.e. Deputy Collector/Sub Divisional Officer in most of the cases) is of the opinion that the entry is result of fake order or fraud. Similarly if name of an Asami pattedar is to be expunged from the revenue records on the ground of expiry of period of patta or any other ground, notice must be given to him before expunging his name. In a recent authority reported inHari Ramv.Collector, 2004 (2) RD 360 it has been held by this Court that apart from suit for ejectment under Section 202 of UPZA and LR Act Asami pattedar may be evicted after expunging his name from the revenue records under Section 34 of UPZA and LR Act but it can be done only after providing opportunity of hearing to the pattedar/les-see. However if entry is expunged or any other order is passed without hearing the person affected then he is entitled to file an application for post decisional hearing and recall of the order before the court/authority which passed the ex-parte order. If such an application is filed then the court/authority concerned shall hear the applicant and in case it comes to the conclusion that the earlier order is not correct then the said order shall be set aside. In such situation it is not necessary to first set aside the order and then hear the party concerned. Along with such application such evidence must be filed which the party considers necessary for his case. It has been held by the Supreme Court inA.M.U. Aligarhv.M.A. Khan,(2000) 7 SCC 529: AIR 2000 SC 2783 that a person who complains about denial of opportunity of hearing must show that in case opportunity had been provided to him, what cause he would have shown or what defence he would have taken. (Similar view has been taken inS.L. Guptav.A.D. Gupta, 2003 AIR SCW 7089 (para 29) and Canara Bank ((2003) 4 SCC 557: AIR 2003 SC 2041) (supra). Against ex-parte orders of expunging of names it is not proper to file revision and appeal etc. directly. However, if revision, appeal etc. is directly filed then revisional court/appellate Court may also instead of deciding the revision or appeal on merit may grant leave to the affected party to apply for post decisional hearing and recall of order before the trial court/authority. The, revisional/appellate authority may also decide the matter on merit after providing opportunity of post decisional hearing (i.e. opportunity to show that earlier entry was not fake) as mentioned in the judgment of Supreme Court in Canara Bank (supra).

9.Revenue authorities/Courts must remember that a party can in some cases successfully show that entry of his name in the revenue record is correct and not fake or based upon fake order. This question can be decided only and only after hearing the party concerned and likely to be affected.

2- 2009 SCC OnLine All 2522 (Smt. Kunti and Others Vs. Commissioner, Meerut Division and Others). Relevant paragraph of the judgment are as under :

"2. The Court is not pleased with the conduct of the matter in question by the respondents. Inspite of repeated warning by this Court that the name of no person shall be deleted from the revenue record particularly if it is continuing for a very long period without hearing him (videChaturgunv.State,) still revenue authorities in U.P. are very much fond of scoring off the entries by using the magic word ''Farzi'. Detailed inquiries are said to have been held, in the instant case, however, it was considered to be frivolous to hear the concerned persons. If an authority goes out of the way to deny opportunity of hearing to the person concerned then a doubt may come in the mind of the Court that authority was of the opinion that its case is extremely weak and it will not be able to pass the order which it intends to pass in case the party concerned is heard.

3. On the other hand if the entries in the revenue record are fictitious or forged then not only entry is liable to be corrected and person where name is recorded is liable to be evicted forthwith videHari Ramv.Collector, but he may also be saddled with the liability of paying good damages for the period for which he remained in possession (minimum Rs. 10,000 per hectare per year). Criminal proceedings may also be launched against him. However, thesin-qua-nonfor all these things is opportunity of hearing.

3. Writ-C No. 6934 of 2018 (Ram Bachan Yadav and Another Vs. State of U.P.) decided on 04.04.2018. Relevant paragraphs of the judgment are as under :

"12. In several revenue matters Deputy Collectors/Sub-Divisional Officers and other revenue authorities and courts are passing orders particularly of removal of names from revenue records without hearing the parties which are effected by the said orders placing reliance upon the authority of the Supreme Court inUttar Pradesh Junior Doctors Action Committee v. Dr. B. Sheetal Nandwani, (1991) AIR SC 909. It is the first principle of natural Justice that no adverse orders shall be passed against a person without hearing him even in administrative matters which affect the rights of persons. Grant of opportunity of hearing in administrative matters is comparatively a recent doctrine. As far as judicial matters are concerned since the time when Courts were established it has been the most essential ingredient of procedural law that no order shall be passed without hearing parties concerned. Removal and substitution of entry in revenue records under Section 34 of Land Revenue Act or any other provision is a judicial matter making it all the more necessary to provide opportunity of hearing to the party concerned. The aforesaid authority of the Supreme Court is a rare exception to the Rule. In the said authority the facts were that innumerable medical students on the basis of a fake order of this High Court had obtained admission in higher classes. The Supreme Court enquired the matter from Registrar of this Court. The Registrar sent the original file to the Supreme Court with the report that in the said case no such order was passed. As innumerable persons had obtained benefit under an order which was not in existence and as the original file with the report of Registrar of this High Court was available before the Supreme Court hence the Supreme Court held that in view of peculiar facts and circumstances of the case it was not necessary to hear those innumerable students who had obtained admission in different medical colleges of Uttar Pradesh on the basis of the said order. There is one more point of distinction in the aforesaid authority of the Supreme Court. The fake order of the High Court Stated that the order was being passed on the basis of an earlier judgment of the Supreme Court. The Supreme Court had later on modified the said judgment. The said judgment of the Supreme Court cannot therefore be applied to such revenue cases where entries in revenue records are to be cancelled and substituted particularly when entries are continuing for a long time, i.e., more than a year. In some cases it is found that entries continuing for several decades have been cancelled without hearing the person affected on the basis of the aforesaid Supreme Court authority. The Board of Revenue inChandra Datt v. State1992 RD 160, has also taken similar view. In the said authority it has been held that:

"When men get their name incorporated by deceitful means they do not turn up when process is issued to them. In avoiding the summons they hope to prolong continuance of their names in record. They sit like an eagle over a lonely crag surveying the proceeding. Immediately after the order is passed, they will descent on the scene to lodge their protest in revision." (Para-6).

13. Whether an entry in revenue record is fake or fraudulent is a question of fact and can be found to be proved like any other fact only after providing opportunity of hearing to the parties concerned and likely to be affected by the ultimate order/judgment. It is correct that action taken on the basis of fraud has to be set aside and any entry on the basis of fake order has to be expunged. [Vide United India Insurance Co. v. Rajendra Singh, (2000) 2 SCR 264, wherein it has been held (approved) that "no judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels every thing"). However, finding in respect of fraud cannot be recorded ex-parte. The Supreme Court inSevenska Handelsbanken v. India Charge Chrome, (1994) AIR SC 626, placing reliance uponA.L.N. Narayanan Chettiyar v. Official Assignee, held in para 44 as under :

"Fraud like any other charge of a criminal proceedings, must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion and conjecture."

14. In the following authorities the Supreme Court has held that even before passing administrative orders affecting rights of parties opportunity of hearing shall be granted :

(1)Ashok v. Union of India, (1997) AIR SC 2298 (It was a case of ban of particular insecticides).

(2)Sahi Ram v. Awtar Singh, (1999) AIR SC 2169 (It was a case of mining lease).

(3)G. Pharmaceuticals v. State of U. P., (2001) AIR SC 3707 (It was a case of black listing of contractor).

(4)H.A. Shakoor v. Union of India, (2002) AIR SC 2423 (It was a case of reduction of category of a contractor).

(5)Director General of Police v. M. Sarkar, (1996) 3 SCR 530 (In this case constables were discharged from service on the ground that they produces a fake list from Employment Exchange without providing opportunity of hearing. Supreme Court approved the order of High Court setting aside discharge order on the ground of denial of opportunity of hearing).

(6)All India S.C. and S.T. Employees Association v. A.A. Jeen, (2001) 2 SCR 1183 (In this case hundreds of employees were affected hence Supreme Court held that they might be served in representative capacity).

(7)Godawat Pan Masala Products v. Union of India, (2004) SC 4057 (In this case it was held that notification prohibiting manufacture and sale etc. of pan masala and gutka was bad in law as it had been issued without providing opportunity to the manufactures of meeting the facts relied upon in the notification in respect of injurious effects of pan masala and gutka).

(8)Canara Bank v. Debasis Das, (2003) IILLJ5 31 SC (In this authority several principles of natural justice expressed in Latin words have been discussed in detail giving their history (since 1215), scope and applicability.

15. Regarding first principle of natural justice that no person shall be punished unheard (audi alteram partem) it has been held that if appellate authority (it was a case of punishment of an employee) grants post decisional hearing then it may be sufficient compliance of requirement of hearing. In this regard reference has been made toC.L. Sahu v. Union of India, (1990) AIR SC 1480 . (Concept of useless formality theory has also been adverted to in para 22 but no final opinion in that regard has been expressed).

16. Accordingly, it is held that whenever an entry in the revenue record is to be cancelled and substituted particularly when the entry is continuing for more than a year, notice must be given to the party in whose favour entry stands even if prima facie, authority/court concerned (i.e. Deputy Collector/Sub Divisional Officer in most of the cases) is of the opinion that the entry is result of fake order or fraud.

17. Revenue, authorities/courts must remember that a party can in some cases successfully show that entry of his name in the revenue record is correct and not fake or based upon fake order. This question can be decided only and only after hearing the party concerned and likely to be affected."

Learned Counsel for the petitioner further stated that even in the case of entry alleged to be forged, an opportunity of hearing should be provided to the concerned. Thus, on the ground of not providing proper opportunity of hearing before passing the impugned order dated 24.08.2009 affirmed by impugned order dated 27.01.2023 wherein this aspect has been ignored are liable to be interfered by this Court. Prayer is to allow the present petition.

Per contra, learned Counsel for the State, stated that entry in the revenue record in favour of the petitioner was a forged entry. As such no opportunity of hearing is required. However, learned Counsels for the side opposite could not dispute the law settled on the issue in the present petition, which relates to providing an opportunity of hearing before passing an adverse order in regard to a long standing entry in revenue record.

Considered the submissions of learned Counsel for the parties and perused the impugned order as also considered the judgments referred by learned Counsel for the petitioner.

From the impugned order dated 24.08.2009 itself it is evident that no opportunity of hearing was provided to the petitioner before passing this order and it further appears from the order dated 27.01.2023 that the revisional authority took the view that providing opportunity of hearing is not required if entry is forged, which is not in consonance to the view taken by this Court in the judgments referred above. Thus, this Court is of the view that the impugned orders are liable to be interfered with so far as it relates to the petitioners.

Accordingly, the petition is allowed and the order dated 27.01.2023 and also the order dated 24.08.2009 are set aside so far as the same relate to the petitioners. The matter is remanded back to the respondent No.2 Sub-District Magistrate Mankapur District-Gonda to decide the case a fresh, within four months from the date of production of certified copy of this order, after affording full opportunity of hearing to the parties, but without granting any unnecessary adjournment to either of the parties. However, if the petitioners do not file certified copy of this order within one month then this writ petition shall stand dismissed.

It is made clear that the Court has not examined the case of either of the parties on merits and the authority concerned shall be free to decide the matter strictly in accordance with law.

Order Date :-2.8.2023

Raj