Madhya Pradesh High Court
Rajaram Yadav vs The Additional Commissioner on 10 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 WP No.2166/2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 10th OF MAY, 2024
WRIT PETITION No. 2166 of 2021
BETWEEN:-
RAJARAM YADAV S/O SHRI HAR PRASAD YADAV,
AGED ABOUT 60 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE KORNI TEHSIL AND
DISTRICT SAGAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SARTHAK NEMA - ADVOCATE)
AND
1. THE ADDITIONAL COMMISSIONER, SAGAR
DIVISION, DISTRICT SAGAR (MADHYA
PRADESH)
2. THE COLLECTOR SAGAR DISTRICT SAGAR
(MADHYA PRADESH)
3. THE SUB DIVISIONAL OFFICER, SAGAR,
DISTRICT SAGAR (MADHYA PRADESH)
4. THE NAYAB TAHSILDAR, NARYAWALI, SAGAR,
DISTRICT SAGAR (MADHYA PRADESH)
5. DEVENDRA YADAV S/O SHRI ASHARAM YADAV,
AGED ABOUT 45 YEARS, R/O VILLAGE KORNI
SAGAR, DISTRICT SAGAR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SURDEEP KHAMPARIYA - PANEL LAWYER FOR RESPONDENTS
NOS.1 TO 4, SHRI SHYAM YADAV - ADVOCATE FOR RESPONDENT NO.5)
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition under Article 226 of Constitution of India has been filed seeking the following reliefs:
2 WP No.2166/2021"(i) This Hon'ble Court may kindly be pleased to issue a Writ in the nature of Certiorari quashing the Impugned orders dated 22.12.2017 passed by Nayab Teshildar (Annexure -2), 31.12.2018 (Annexure P-4) passed Sub Divisional Officer and 06.01.2021 (Annexure P-6) passed by Additional Commissioner as arbitrary, illegal and void.
(ii) In the alternative the Petitioner prays that the Hon'ble Court may please to direct the Sub Divisional Officer to consider and decide the appeal of the Petitioner on merits after condoning the delay.
(iii) Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted together with the cost of this Petition."
2. It is submitted by counsel for petitioner that by order dated 07.03.2005 passed by Naib Tehsildar, Naryawali in Revenue Case No.28A/27 Year 2004-05 an order of partition was passed. Undisputedly the order of partition was never challenged. It is submitted that thereafter on 06.02.2017 respondent No.5 filed an application for mutation of his name on the basis of order dated 07.03.2005 passed by Naib Tehsildar, Naryawali. The said application was allowed and order of mutation was passed.
3. Being aggrieved by the order of mutation, petitioner preferred an appeal alongwith an application under Section 5 of Limitation Act. However, SDO (Revenue) Sagar, District Sagar by order dated 31.12.2018 dismissed the application filed under Section 5 of Limitation Act and as a consequence, dismissed the appeal on the ground of limitation.
4. Being aggrieved by said order, petitioner preferred a revision before the Court of Additional Commissioner, Sagar Division, Sagar 3 WP No.2166/2021 which was registered as 11/Revision/2018-19 which too has been dismissed by order dated 06.01.2021.
5. Challenging the orders passed by Revenue Courts, it is submitted by counsel for petitioner that it is true that order of partition was passed on 07.03.2005 and was never challenged but respondent No.5 moved an application for mutation of his name after 12 years and therefore, the application for mutation should not have been entertained. Furthermore, it is submitted that petitioner was not made a party in the application for mutation of name on the basis of order dated 07.03.2005, therefore, the order passed by Naib Tehsildar Naryawali, District Sagar on 22.12.2017 is bad in law. Once petitioner was not a party to the proceedings which were instituted before the Court of Naib Tehsildar, then S.D.O. (Revenue) Sagar, District Sagar should not have held that petitioner has failed to point out the sufficient cause for condonation of delay.
6. Per contra, the petition is opposed by counsel for respondents.
7. Heard learned counsel for parties.
8. This Court had put a single question to counsel for petitioner as to whether order dated 22.12.2017 passed by Naib Tehsildar, Naryawali, District Sagar was in conformity with order of partition dated 07.03.2005 or not?
9. It was fairly conceded by counsel for petitioner that order of mutation was in conformity with the order of partition dated 07.03.2005.
10. It is well established principle of law that mutation entry is not a document of title and mutation of name in revenue record would not confirm any title and deletion of name would not take away the title from the rightful owner.
11. Once the property was partitioned and merely because the name was not mutated, that by itself would not nullify the order of partition 4 WP No.2166/2021 and would not deprive the person from the title of the property which went to his share in the partition proceedings. Therefore, merely because application for mutation was filed after 12 years, no adverse consequences would follow so far as the rights of respondents are concerned.
12. Under these circumstances, Naib Tehsildar, Tehsil Naryawali, District Sagar did not commit any mistake by allowing the said application.
13. Now the next question for consideration is as to whether the order dated 07.03.2005 passed by Naib Tehsildar, Tehsil Naryawali, District Sagar without issuing any notice to petitioner is bad in law or not?
14. The principle regarding violation of natural justice has undergone vital changes and merely because a person was not given an opportunity of hearing is not sufficient to quash the proceedings unless and until it is pointed out by aggrieved person that he was prejudiced by an order which was passed behind his back.
15. The Supreme Court in case of Nirma Industries Limited and another Vs. Securities and Exchange Board of India reported in (2013) 8 SCC 20 has held as under:
"30. In B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] , having defined the meaning of "civil consequences", this Court reiterated the principle that the Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished to the employee. It is only if the Court or Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. In other words, the Court reiterated that the person challenging the order on the basis that it is causing civil consequences would have to prove the prejudice that 5 WP No.2166/2021 has been caused by the non-grant of opportunity of hearing............
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35. Mr Venugopal has further pointed out that apart from the appellants, even the merchant bankers did not make a request for a personal hearing. He submitted that grant of an opportunity for a personal hearing cannot be insisted upon in all circumstances. In support of this submission, he relied on the judgment of this Court in Union of India v. Jesus Sales Corpn. [(1996) 4 SCC 69] The submission cannot be brushed aside in view of the observations made by this Court in the aforesaid judgment, which are as under:
(SCC pp. 74-75, para 5) "5. The High Court has primarily considered the question as to whether denying an opportunity to the appellant to be heard before his prayer to dispense with the deposit of the penalty is rejected, violates and contravenes the principles of natural justice. In that connection, several judgments of this Court have been referred to. It need not be pointed out that under different situations and conditions the requirement of compliance with the principle of natural justice vary. The courts cannot insist that under all circumstances and under different statutory provisions personal hearings have to be afforded to the persons concerned. If this principle of affording personal hearing is extended whenever statutory authorities are vested with the power to exercise discretion in connection with statutory appeals, it shall lead to chaotic conditions. Many statutory appeals and applications are disposed of by the competent authorities who have been vested with powers to dispose of the same. Such authorities which shall be deemed to be quasi-
judicial authorities are expected to apply their judicial mind over the grievances made by the appellants or applicants concerned, but it cannot 6 WP No.2166/2021 be held that before dismissing such appeals or applications in all events the quasi-judicial authorities must hear the appellants or the applicants, as the case may be. When principles of natural justice require an opportunity to be heard before an adverse order is passed on any appeal or application, it does not in all circumstances mean a personal hearing. The requirement is complied with by affording an opportunity to the person concerned to present his case before such quasi- judicial authority who is expected to apply his judicial mind to the issues involved. Of course, if in his own discretion if he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then certainly it is always open to such authority to decide the appeal or the application only after affording a personal hearing. But any order passed after taking into consideration the points raised in the appeal or the application shall not be held to be invalid merely on the ground that no personal hearing had been afforded."
16. The Supreme Court in case of Chairman, State Bank of India and another Vs. M.J. James reported in (2022) 2 SCC 301 has held as under:-
"31. In State of U.P. v. Sudhir Kumar Singh [State of U.P. v. Sudhir Kumar Singh, (2021) 19 SCC 706 :
2020 SCC OnLine SC 847] referring to the aforesaid cases and several other decisions of this Court, the law was crystallised as under : (SCC para 42) "42. An analysis of the aforesaid judgments thus reveals:
42.1. Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.7 WP No.2166/2021
42.2. Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.
42.3. No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
42.4. In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
42.5. The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-
observance of natural justice."
17. The Supreme Court in case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and others reported in (2015) 8 SCC 519 has held as under:-
"20. Natural justice is an expression of English Common Law. Natural justice is not a single theory--it 8 WP No.2166/2021 is a family of views. In one sense administering justice itself is treated as natural virtue and, therefore, a part of natural justice. It is also called "naturalist" approach to the phrase "natural justice" and is related to "moral naturalism". Moral naturalism captures the essence of commonsense morality--that good and evil, right and wrong, are the real features of the natural world that human reason can comprehend. In this sense, it may comprehend virtue ethics and virtue jurisprudence in relation to justice as all these are attributes of natural justice. We are not addressing ourselves with this connotation of natural justice here.
21. In Common Law, the concept and doctrine of natural justice, particularly which is made applicable in the decision-making by judicial and quasi-judicial bodies, has assumed a different connotation. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must give (sic an opportunity) to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as "natural justice". The principles of natural justice developed over a period of time and which is still in vogue and valid even today are: (i) rule against bias i.e. nemo debet esse judex in propria sua causa; and (ii) opportunity of being heard to the party concerned i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is the duty to give reasons in support of decision, namely, passing of a "reasoned order".
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38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straitjacket formula. It all depends upon the kind of functions performed and 9 WP No.2166/2021 to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as a necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post- decisional hearing is held to be permissible. Further, the courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.
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40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non- grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of "prejudice". The ultimate test is always the same viz. the test of prejudice or the test of fair hearing.
10 WP No.2166/202141. In ECIL [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] , the majority opinion, penned down by Sawant, J., while summing up the discussion and answering the various questions posed, had to say as under qua the prejudice principle: (SCC pp. 756-58, para 30) "30. Hence the incidental questions raised above may be answered as follows:
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(v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-
furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It 11 WP No.2166/2021 amounts to an 'unnatural expansion of natural justice' which in itself is antithetical to justice."
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44. At the same time, it cannot be denied that as far as courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the action is taken. This was so clarified in ECIL [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] itself in the following words: (SCC p. 758, para
31) "31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the court/tribunal and given the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the court/tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the court/tribunal should not interfere with the order of punishment. The court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the courts/tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the court/tribunal finds that the furnishing of the report would have made a difference to the result 12 WP No.2166/2021 in the case that it should set aside the order of punishment."
18. The Supreme Court in case of Canara Bank and others v. Debasis Das and others reported in (2003) 4 SCC 557 has held as under:-
"22. What is known as "useless formality theory"
has received consideration of this Court in M.C. Mehta v. Union of India [(1999) 6 SCC 237] . It was observed as under: (SCC pp. 245-47, paras 22-23) "22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of 'real substance' or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed see Malloch v. Aberdeen Corpn. [(1971) 2 All ER 1278 : (1971) 1 WLR 1578 (HL)] (per Lord Reid and Lord Wilberforce), Glynn v. Keele University [(1971) 2 All ER 89 : (1971) 1 WLR 487] , Cinnamond v. British Airports Authority [(1980) 2 All ER 368 : (1980) 1 WLR 582 (CA)] and other cases where such a view has been held. The latest addition to this view is R. v. Ealing Magistrates' Court, ex p Fannaran [(1996) 8 Admn LR 351] (Admn LR at p. 358) [see de Smith, Suppl. p. 89 (1998)] where Straughton, L.J. held that there must be 'demonstrable beyond doubt' that the result would have been different. Lord Woolf in Lloyd v. McMahon [(1987) 1 All ER 1118 :
1987 AC 625 : (1987) 2 WLR 821 (CA)] has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant [1959 NZLR 1014] however goes halfway when it says that (as 13 WP No.2166/2021 in the case of bias), it is sufficient for the applicant to show that there is 'real likelihood -- not certainty -- of prejudice'. On the other hand, Garner's Administrative Law (8th Edn., 1996, pp. 271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935 (HL)] , Megarry, J. in John v. Rees [(1969) 2 All ER 274 : 1970 Ch 345 : (1969) 2 WLR 1294] stating that there are always 'open and shut cases' and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider.
Ackner, J. has said that the 'useless formality theory' is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that 'convenience and justice are often not on speaking terms'. More recently, Lord Bingham has deprecated the 'useless formality theory' in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton [1990 IRLR 344] by giving six reasons. (See also his article 'Should Public Law Remedies be Discretionary?' 1991 PL, p. 64.) A detailed and emphatic criticism of the 'useless formality theory' has been made much earlier in 'Natural Justice, Substance or Shadow' by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch [(1971) 2 All ER 1278 :
(1971) 1 WLR 1578 (HL)] and Glynn [(1971) 2 All ER 89 : (1971) 1 WLR 487] were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decision-
making authority. de Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a 14 WP No.2166/2021 distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a 'real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their 'discretion', refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364 :
1996 SCC (L&S) 717] , Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.
23. We do not propose to express any opinion on the correctness or otherwise of the 'useless formality' theory and leave the matter for decision in an appropriate case, inasmuch as in the case before us, 'admitted and indisputable' facts show that grant of a writ will be in vain as pointed out by Chinnappa Reddy, J."
23. As was observed by this Court we need not go into "useless formality theory" in detail; in view of the fact that no prejudice has been shown. As is rightly pointed out by learned counsel for the appellants, unless failure of justice is occasioned or that it would not be in public interest to dismiss a petition on the fact situation of a case, this Court may refuse to exercise 15 WP No.2166/2021 the said jurisdiction (see Gadde Venkateswara Rao v. Govt. of A.P. [AIR 1966 SC 828] ). It is to be noted that legal formulations cannot be divorced from the fact situation of the case. Personal hearing was granted by the Appellate Authority, though not statutorily prescribed. In a given case post-decisional hearing can obliterate the procedural deficiency of a pre-decisional hearing. (See Charan Lal Sahu v. Union of India [(1990) 1 SCC 613 : AIR 1990 SC 1480] .)"
19. If the facts of this case are considered, then it is suffice to mention here that in the beginning of arguments, a specific question was put to counsel for petitioner as to whether the order of mutation is in accordance with order of partition or not and it was replied by counsel for petitioner that order of mutation is in conformity with the order of partition.
20. Once the order of mutation has not taken away any right of petitioner, then non-service of notice or non-impleadment of petitioner as respondent in the application of mutation would not make the order dated 07.03.2005 vulnerable.
21. No other argument is advanced by counsel for petitioner.
22. Considering the totality of facts and circumstances of the case, this Court is of considered opinion that no case is made out warranting interference.
23. The petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE vc Digitally signed by VARSHA VARSHA CHOURASIYA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, CHOUR 2.5.4.20=f460d4685ef5a4622238f0b 59b78c2407fd3ee2f619d9ce8e428c 224c23ec8ac, postalCode=482001, st=Madhya Pradesh, serialNumber=A0506346908D8FDC ASIYA 4A2DA9968A85B01E1D95EF7D163 0553560798626817C4267, cn=VARSHA CHOURASIYA Date: 2024.05.10 18:51:12 +05'30'