Vinay Kumar Khandelwal vs Consolidation Officer-Ii, And 4 ...
2023 Latest Caselaw 3605 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 

 
Case :- WRIT - B No. - 3775 of 2022
 

 
Petitioner :- Vinay Kumar Khandelwal
 
Respondent :- Consolidation Officer-Ii, And 4 Others
 
Counsel for Petitioner :- Virendra Singh
 
Counsel for Respondent :- C.S.C.,Sher Bahadur Singh
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the petitioner, learned Standing Counsel representing respondents No. 1, 2 & 5 and learned counsel for respondents No. 3 & 4.

2. Petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India assailing the order dated 27.01.2021 passed by the Consolidation Officer in pursuance of the order dated 09.10.2020 passed by the Settlement Officer of Consolidation.

3. Precise case of the petitioner is that Consolidation Officer has passed an ex parte order dated 27.01.2021 sans opportunity of hearing accorded to the recorded tenure holder (petitioner).

4. It is submitted that against the order dated 18.07.2021 passed by the Consolidation Officer, several appeals were preferred on behalf of the Gaon Sabha. All the appeals were decided by a common ex parte order dated 09.10.2020 passed by the Settlement Officer of Consolidation and the matter was remitted before the Consolidation Officer to decide the same afresh after affording opportunity of hearing to the parties. After remand, Consolidation Officer has passed fresh order dated 27.01.2021 that too sans opportunity of hearing accorded to the petitioner in contravention of the direction as issued by the Settlement Officer of Consolidation in its order dated 09.10.2020. While entertaining the instant writ petition, this Court has passed following order dated 17.01.2023:-

"Grievance of the petitioner is that the order dated 9.10.2022 passed by Settlement Officer of Consolidation and, in pursuance thereof, order dated 27.1.2021 passed by Consolidation Officer are ex-parte orders passed behind the petitioner sans opportunity of hearing.

Learned Standing Counsel is directed to take instructions in the matter and submit a short counter affidavit with regard to opportunity of hearing to the petitioner before the Settlement Officer of Consolidation and the Consolidation Officer. Along with short counter affidavit he shall file the order sheet of the appeal decided by the Settlement Officer of Consolidation and the order sheet of the case decided by the Consolidation Officer.

List this matter in top ten cases of the additional cause list dated 6.2.2023.

Till the next date of listing parties are directed to maintain status quo with respect to the nature and possession over the property in question.

On the next date fixed Writ Petition No. 2233 of 2021 shall also be listed along with other connected matters. "

5. In pursuance of the order dated 17.01.2023, a short counter affidavit has been filed on behalf of the State apprising the Court that notice was issued to the petitioner, however, same could not be served because the addressee was not found in the village, therefore, notice was pasted on the public place. Endorsement made at the back of the notice is quoted hereinbelow:-

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02.12.20"

6. Nothing has been demonstrated by learned Standing Counsel that order has been passed after affording effective opportunity of hearing to the petitioner. Even from the impugned order, nothing reflects that petitioner was served notice and heard before passing the order dated 27.01.2021.

7. In the given circumstances, it is apparent that no effective opportunity of hearing had been afforded to the petitioner before passing the impugned order. Consequently, his right and title is affected owing to violation of natural justice and fair play. He has been deprived of his valuable rights sans adhering to the cannons of natural justice. In the matter of Muzeeb Vs. Deputy Director of Consolidation, Azamgarh reported in AIR 1996 Allahabad 88, co-ordinate Bench of this Court has held that a post order opportunity of hearing is necessary to the person adversely affected in the cases where an entry is expunged or corrected in the revenue record sans opportunity of hearing. The relevant paragraph 5 of the judgment dated 16.2.1995 in case of Muzeeb (supra) is quoted hereinunder:

"5. But the matter does not end here. The possibility of an error creeping in by authority concerned cannot be ruled out. The authority passed order without hearing person adversely affected. In such matters possibility cannot be ruled out that the person affected be possessed of sufficient material by which he may be able to show that the order giving rise to entry in dispute is not a forged one. This requires safeguarding of interest of person adversely affected by correction of entry in revenue papers. This interest of affected person can be safeguarded by providing him a post order opportunity of hearing. This will also exclude possibility of error, which may arise due to want of opportunity of hearing and a possible error will also stand rectified in maintenance of correct revenue entries. For said reason a post order opportunity of hearing is necessary to person adversely affected in cases where an entry is expunged or corrected in revenue records and order correcting entry is passed without affording opportunity of hearing to person adversely affected. Correcting an entry to be based on forged or non-existing order, to which person aggrieved raises an objection that the order of correction has been wrongly passed, the aggrieved person is entitled to be heard after correction being done."

8. Explaining the principle of natural justice in the matter of Canara Bank and others Vs. Shri Debasis Das and others reported in AIR 2003 Supreme Court 2041, Hon'ble Supreme Court has expounded that order passed in violation of natural justice is no final decision on the case. Relevant paragraphs 16 and 21 of the judgment passed in Canara Bank and others (supra) is quoted hereinbelow:

"16. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

21. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua' as stated in (1605) 12 Co.Rep.114 that is, 'no man shall be a judge in his own cause'. Coke used the form 'aliquis non debet esse judex in propria causa quia non potest esse judex at pars' (Co.Litt. 1418), that is, 'no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party'. The form 'nemo potest esse simul actor et judex', that is, 'no one can be at once suitor and judge' is also at times used. The second rule is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries, the form 'audietur at altera pars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated."

9. In the case of Ram Bachan Yadav and another Vs. State of UP and others, reported in 2018 (140) RD 39, co-ordinate Bench of this Court has considered the requirement of opportunity of hearing before passing the adverse order against the recorded tenure holder expunging his name from the revenue record. The relevant paragraphs No. 14, 16 and 17 of the judgment in the case of Ram Bachan (supra) are quoted hereinunder:

"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, AIR 1997 SC 2298 (It was a case of ban of particular insecticides).

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

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

(4) H.A. Shakoor v. Union of India, AIR 2002 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, AIR 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) 2 LLJ 531 (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.

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."

10. In this conspectus, as above, for the limited point with respect to the opportunity of hearing, I found substance in the instant writ petition, therefore, instant writ petition succeeds and is allowed. Order impugned dated 27.01.2021 passed by the Consolidation Officer, so far as it relates to the petitioner, is quashed. Proceeding before the Consolidation Officer, which was decided in pursuance of the order dated 09.10.2020 passed by the Settlement Officer of Consolidation, is hereby restored to its original number. Parties are relegated before the Consolidation Officer to get the case decided afresh after affording opportunity of hearing and after giving opportunity to adduce the evidence to defend their respective cases. It is made clear the Consolidation Officer shall decide the matter afresh on merits of the case without being influenced with any observation made by the Settlement Officer of Consolidation in his remand order.

11. Considering the old matter, it is further directed that the Consolidation Officer shall consider and decide the case within a period of six months from the date of production of certified copy of this order. Parties are directed to appear before the Consolidation Officer on 27.02.2023.

Order Date :- 6.2.2023

K.K.RAO